Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ROGER HOG OF HARCARSE.

Robert Handiside
v.
Williamson

1684. January.

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In a competition betwixt an arrester and the possessor of a prior precept, drawn by the common debtor, and accepted by the person in whose hands the money was arrested;—it was alleged for the arrester, That the precept, as gratuitously given after the arrester's debt, was quarrellable upon the Act of Parliament 1621; and the onerous cause being referred to the possessor's oath, he deponed that himself was not creditor to the drawer, but his brother was. The arrester objected against his oath, that the quality is extrinsic, and it must be otherwise proven that the brother was creditor to the drawer; and, esto that were proven, the arrester's diligence should be preferred, unless it were made appear, scripto, before the arrestment, or by the arrester's oath, that the precept was given for the brother's debt. It were again a dangerous preparative to allow persons, whose rights are quarrelled as wanting an onerous cause, to impute them to the payment of a creditor who had done no diligence, and so to disappoint the diligence of another creditor. The Lords, before answer, ordained the debtor, drawer of the precept, and the possessor's brother, to be examined if the precept was truly granted at the time for the behoof of the brother; who had sold some goods to the drawer for ready money; and, as was alleged, had verbally ordered his brother to receive his money or the precept.

Page 15, No. 81, [1st.]