Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Robert Balcanqual
v.
Robert Davidson

Date: 30 January 1629

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Mr Robert Balcanqual, to whom Alexander Mauchan was addebted in 1000 pounds, and Robert Davidson, another creditor of Alexander's, did strive which of them should be preferred in payment of 1000 merks, owing by my Lord Napier to Alexander, their common debtor. Alleged by Mr Robert, That he was made assignee to that 1000 merks by Alexander, 4th October 1628; likeas he had raised summons against my Lord Napier for payment of the same to him. Alleged, by Robert Davidson, That he ought to be preferred, because he had arrested upon the same 4th October, an hour at least before the making of the assignation: Likeas he raised summons to make the arrested goods forthcoming before Mr Robert, and had continued his summons before the day of compearance in Mr Robert's first summons. Further, the day of payment, contained in his bond, was past, Mr Robert's term not being yet come till Whitsunday 1629; so that he, being prior in term of payment, and anterior in diligence, ought to be preferred. Lastly, No respect ought to be had to the assignation which was made in prejudice of his arrestment; because, at the time of making thereof, Alexander was fugitive, having closed up his shop four days before, so that he could not prefer one creditor to another who had used more timeous diligence. In respect of all this, especially of the last, the Lords preferred the arrester; and found likewise, that the officer's executions, bearing the arrestment to have been made at such an hour of the day, which was before the hour of the intimation, should make faith, except the other party would improve it.

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