Scottish Court of Session Decisions

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

Dickson of Hartry
v.
Brown

1685. March.

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In a competition betwixt an arrester of the goods of his debtor dying before the forthcoming, and an executor-creditor who had confirmed these goods; the executor-creditor craved to be preferred, in respect the goods remained in bonis defuncti, notwithstanding the arrestment; and the confirmation was the first habile complete diligence. Answered, Though, in a competition of arrestments, the first complete diligence is preferable,—a bare arrestment, which is nexus realis, is preferable to a desperate diligence, just as the assignee to a sum would be preferred to one confirming the same as in bonis of the cedent, who died before intimation of the assignation. The Lords inclined to prefer the arrester; but the vote was delayed.

Page 127, No. 466.