Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

John Murray, Merchant in Edinburgh,
v.
George Monteith

Date: 18 July 1677

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In a bill of suspension of a decreet, recovered before the Bailies of Edinburgh, at the instance of Thomas Dewar, skipper of a ship called the Golden Crown of Burntisland; who being decerned to make forthcoming a sixteenth part of the said ship to John Murray, as creditor to Hector M'Kenzie, who was one of the owners; and who had given him an assignation for his payment to one-sixteenth part of the said ship, which he had intimated not only at the skipper's dwelling-house, but likewise at the market-cross of Edinburgh and pier and shore of Leith; whereupon he craved preference, especially upon that ground, That he had the first complete diligence, not only by assignation, but having obtained decreet: whereas the arrester had only arrested the said ship by an execution at the skipper's house; whereas, by the custom of the Admiralty, a ship could only be arrested in the harbour.

It was answered and alleged for George Monteith, the arrester, That, notwithstanding, he ought to be preferred; because the assignation was not lawfully intimated to the skipper, who was out of the country, by letters of supplement at the market-cross of Edinburgh and pier and shore of Leith; but only by an order granted by the assignee himself: whereas the arrester had petitioned and obtained letters of supplement, by warrant of the Lords, and, by virtue thereof, caused execute the arrestment at the market-cross of Edinburgh and pier and shore of Leith. And, as to the arrestment, it was most lawful, albeit it was not upon the ship itself in the harbour; because the vendition of the ship being only in name of the skipper, who had granted a disposition only, with a bond to make forthcoming to the owners, the arrestment against the skipper was most lawful.

The Lords did prefer the arrester, as having executed the same, by virtue of letters of supplement, at the cross of Edinburgh and pier and shore of Leith; without which, they found that the assignee could not intimate, the skipper being out of the country: and likewise found, That the whole property of the ship being in the person of the skipper, who was only obliged to make forthcoming; an arrestment at his dwelling-house, market-cross, and pier and shore of Leith, was sufficient; albeit the ship itself was not arrested.

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