Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

The Master of Gray
v.
Stephen Bruntfield

1662. July.

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Robert Stewart, provost of Linlithgow, in anno 1624, gives bond to Alexander Glen for £151, which was assigned to umquhile William Gray, merchant; and transferred by the Master of Gray, as his executor, to Stephen Bruntfield; who having pursued Robert before the English Judges, there was a defence proponed, viz. That Alexander Glen, the creditor, being debtor to umquhile Alexander Reid, goldsmith, the said Alexander Reid did arrest the said sum in the hands of the said Robert Stewart, and thereupon recovered sentence against him, the said Alexander Glen being called, and that long before the assignation made to the said umquhile William Gray, at least after the intimation; which defence was found relevant. And now the said Stephen Bruntfield raises a review, and alleges, He got wrong by sustaining the foresaid defence, and not being relevant, unless the defender had also alleged payment; and that sentence being obtained against the said Robert Stewart, he ought to have suspended upon double poinding. It was answered, That the defence was justly found relevant, and the English Judges did no wrong; because, Glen being clearly denuded by the said sentence recovered against him, at the instance of Reid, and the defender constituted debtor thereby, it clearly excludes any posterior right made by Glen; especially considering, that nowr, after so long time, the defender has truly lost his discharge granted to him by Reid; and so it were most unjust he should be troubled by a party who has no right: and though, oftentimes, sentences prior and posterior, or assignations, are all suspended by the debtor against whom the same are recovered; yet, where the sentence is not only recovered against the party in whose hands the sum is arrested, but also against the debtor, for his interest, there is, in this case, no necessity of a double poinding against a person having right from the debtor post sententiam. The Lords sutained the decreet, and found, that the defence was not unjustly sustained.

No. 48, Page 35.