Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 In whose hands Arrestments may be used.

James Donaldson, Merchant in Edinburgh,
v.
Archibald Cockburn, Merchant, and late Baillie there

Date: 18 January 1709
Case No. No 65.

Arrestment in the hands of a factor, of a debt due by the constituent, to the arrester's debt or, not a competent foundation of a process of furthcoming, the constituent not being called.

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In a competition betwixt Baillie Cockburn and Mr Dondaldson, creditors of Patrick Haliburton, merchant in Edinburgh—The Lords refused to sustain an arrestment used by Donaldson, in the hands of Mrs Helen Swyntoun, spouse to Captain Francis Charteris, when her husband was out of the kingdom, to affect a debt owing by the Captain to Haliburton. Albeit the Lady had an ample factory and commission at the time to uplift, receive, assign, discharge and dispose of all sums, goods, gear, and others whatsoever, belonging to her husband, and, if needful, to pursue therefor. Because, if a decreet of furthcoming against a factor, without calling his constituent, were sustained, the constituent's whole estate might, without his knowledge, be evicted out of his factor's hands, and perhaps for debts not truly due.

Fol. Dic. v. 1. p. 57. Forbes, p. 300.