Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Anne Mosman
v.
Robert Carmichael

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[Kilk., No. 3 , Competition; C. Home, No. 197.]

In this case there were several questions; 1mo, Whether an arrestment of a debt due by the Bank of Scotland could be used in the hands of the treasurer ? The Lords found it might, in respect the treasurer was mentioned in the obligation, and payments were made to and by him.

2do, Whether, upon an arrestment laid on during the life of the principal debtor, a decreet of forthcoming could be obtained after his death. It was argued that an arrestment was but an inchoate diligence, which fell by the death of the principal debtor, in the same manner as a process of adjudication, begun against a debtor, cannot be transferred against his heir if he should die during the dependence, but must be begun de novo against the heir; that an arrestment certainly did not take the subject ex bonis defuncti, as was evident from a posterior poinding being preferable; therefore the subject, being in bonis defuncti, at the time of his death, could not be carried by an arrestment but by a confirmation qua executor-creditor; and for this there was an express decision observed by Dirleton, 6th December 1666, Leslie against Bayne. The Lords found, that the forthcoming might be pursued after the death of the principal debtor; in respect that arrestment attached the subject, and the decisions since the 1666 had run otherwise.

3tio, A creditor, having arrested a debt due to his debtor, pursued a forthcoming after his death; compeared, another creditor, who had confirmed the same debt as executor-creditor, and claimed to be preferred, as having used the first complete diligence. The Lords preferred the executor-creditor without a division, though the contrary has been more than once found. See Dict., Vol. I., p. 179 and 180.

N.B. It was not alleged here that the arrester was in mora.

4to, One Hardie, being creditor to Colin Mackenzie by bill, did assign that debt to the bank in security of a debt which he owed the bank, and the assignation contained this provision, “That, in case the bank should receive more than was due to them, they should be accountable to Mr Hardie.” The question was, In whose hands this debt could be properly arrested by a creditor of Hardie's; whether in the hands of Colin Mackenzie, or of the bank ?

N.B. The arrestment was before the bank had operated payment from Mackenzie. This case was a little debated, but it was not found necessary to determine it; however, the most of the Lords seemed to be of opinion that the arrestment in the hands of the bank was not sufficient, nor were they moved with the similitude of this case to the case of Ludovic Gordon, decided Feb. 14, 1740.