Scottish Court of Session Decisions

Subject_1 ARRESTMENT.

Faichney
v.
John Campbell

1752, Dec. 12.
Case No. No. 28.

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Austin gave a promissory-note to David Graham, both then in London, in 1744, for L.50, which he indorsed to Pringle, merchant in London, and the indorsation was blank, and Faichney purchased it from Pringle without filling up the indorsation. Austin had conveyed his lands and personal estates in Scotland to certain friends, trustees, to be applied for payment of his debts, and went abroad. Campbell, as creditor to Graham, arrested in the hands of these trustees, and in the forthcoming, called both them and Austin, who on oath acknowledged his being debtor by a promissory-note granted in England, and knew not in whose hands it then was, and thereon Campbell got a decreet of forthcoming against Austin. Austin raised multiplepoinding, wherein Faichney, the indorsee, compeared;—and Shewalton preferred Campbell;—and the case being brought before us, I thought Faichney had the only right to the note, and that the decreet of forthcoming was inept; that the note behoved to be adjudged by the English statute, and the indorsee was preferable to all arrestments prior or posterior; and for any thing that appeared, this indorsation was before the arrestment; that the arrestment in the trustees hands, who were not debtors to Graham, was inept; and the forthcoming against Austin, without an arrestment, was also null. This was argued in the Court an hour, and they were of various opinions on both points, but at last, on the question, the objection to the arrestment was sustained.