Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Nicol
v.
Hume

Date: 6 March 1628

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Nicol, pursuing some of the Laird of Aiton's tenants, to make their farms addebted by them to the Laird, their master, forthcoming, as arrested in their hands by the pursuer, for a debt owing to him by the Laird;—in this process compears one Hume, creditor to the Laird, and who had arrested thir same farms, and alleged that the pursuer had obtained a decreet for farms arrested in the tenants' hands, of another year preceding, which would extend to a greater quantity than would satisfy his debt; and so he ought not to misken that sentence, whereby he might be paid, and de novo again arrest, thereby to prejudge other creditors. The Lords found that the pursuer, having recovered a decreet for his debt, as said is, ought either to renounce the same, or to assign it to the party, or qualify and instruct some competent reason why the same cannot be available to him: or, if he would not, but that he did adhere thereto, that he could not arrest, de novo, for satisfying of that same debt, whereof he behoved to be found satisfied by that sentence, which he could not show he could be frustrated in the execution thereof; it being in his own default, that he wanted payment. The Lords found, that he could not prejudge other creditors to arrest and seek payment of their debts by his several arrestments, thereby to elide and defraud them.

Vid. the cases wherein, after comprising, other execution may be sought.

Page 355.