Scottish Court of Session Decisions

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

Mr Thomas Rigg
v.
Sir William Primrose

1684. March.

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In a competition betwixt an assignee to a debt due by the Lord Roxburgh to the Laird of Alva, and one who had arrested the same;—Alleged for the assignee, That he had done diligence against Roxburgh's heir; whereas the arrester had been in mora, and but lately raised his summons of forthcoming. Answered for the arrester, That he having arrested before the assignation, and been in ordinary diligence, the common debtor could not disappoint his arrestment, which was nexus realis, by any voluntary assignation. Replied for the assignee, The arrestment is null, in so far as the copy bears That the arrestment was used at the within designed Sir William Primrose's instance, for a debt due to the within designed Sir Charles Erskine; so that the designation is not full, and the execution is but a loose paper, not indorsed upon the letters. And, as the Act of Parliament 1672, cap. 6, requires the parties in summons to be fully designed, otherwise that the citation shall be null; this, a pari, should be observed in arrestments. 2. Though the copy bears to be stamped, there is no vestige of the stamp. 3. The debtor in whose hands the arrestment was laid on, being dead, the effect thereof ceased, as in inhibitions where the inhibited party dies. Duplied for the arrester, The Act of Parliament 1672 concerns only the execution of summonses: besides, Sir William Primrose and Sir Charles Erskine is a kind of designation more certain than the general designation of Writer in Edinburgh;—that would be sufficient though there were many other persons of that name and employment. 2. The copy bears the stamp to have been affixed, which must be presumed true till the contrary be proven. Though the Act of Parliament required stamping, when writing was not much in use, it is not customary to use any wax; and frequently the paper is not so much as laid down, stamping being considered but as a mere formality. 3. Whatever might be prevented [pretended] for the extinction of the arrestment, if the heir had paid, not knowing of the arrestment laid in his father's hand, that cannot hold in this case, where the debt continues unpaid. The Lords found, that the Act of Parliament 1672 did not concern arrestments; and that arrestment died with the debtor in whose hand it was made, as inhibition does. But this part of the interlocutor was stopped, in order to a farther hearing the next session; and the Lords delayed to give answer to the objection about the stamping. Vide No. 125, [Campbell against Clark, July 1688.]

Page 15, No. 82.