Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Veitch v. Galt, Balfour, and Others, Pourie's Debtors
Date: 8 January 1698
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In a process of forthcoming pursued by John Veitch, son to Dawick, against Galt, Balfour, and other merchants, as having some goods in their hands be longing to Pourie, his debtor;—the first defence was, Goods in copartnery are not arrestable, else this would mar all commerce and transmission. Answered, —They must be affectable by some diligence, and adjudication is not proper for a moveable subject; ergo, they must be subject to arrestment. The Lords repelled the defence.
2do. alleged,—They had no proper nor natural possession, the same being in common amongst them all. Answered,—Their possessing pro indiviso is sufficient to found an arrestment. The Lords also repelled the second defence.
Then, 3tio. alleged,—No communion or society could hinder a socius to provoke his co-partners ad divisionem, quia nemo cogitur manere in communione except he please: And, ita est, auctore prœtore, by warrant of a magistrate we divided the goods, and Balfour got Mr Pourie your debtor's share and proportion, against whom you may insist. Answered,—Though you might lawfully divide, yet, I having put you in mala fide, by arresting before, you should have called me before you gave up his share. Replied,—You have no prejudice, for it is yet extant in that depositary's hands; and you may vindicate the same, there being a nexus realis which follows the arrested goods. Duplied,— I will not enter into that debate, Whether arrestment be only a personal prohibition, or if it affects the goods wherever they go. You could not change the nature of my action by a deed of yours; and, where there is difficultas conveniendi, it is more reasonable you be at that trouble of recovering the goods than I.
The Lords decerned against Galt, &c. reserving their recourse against the haver of the goods; and, he being called incidenter, they were ordained instantly to debate.
