Scottish Court of Session Decisions

Subject_1 ARRESTMENT.

Lochwood
v.
Wilson

1738, July 4.
Case No. No. 8.

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The Lords were somewhat divided in their opinions about these arrestments.—Arniston thought the debt not at all arrestable, because secured by adjudication; which was indeed my own opinion; and though I preferred Wilson, yet that was because I thought Lochwood's arrestment inept, and then there was none to compete with Wilson, for Sir James Campbell, who alone had interest, did not object.—But the President and others thought, since the money was consigned, it might be arrested, and therefore upon supposition of its being arrestable, they proceeded to determine the preference;—and it carried to prefer Lochwood's, almost unanimously;—but then they were divided in their reason of preference. The President, Royston, Milton, Drummore, Justice-Clerk, and Dun, thought his arrestment preferable to Wilson's, merely because Lochwood's was in the Clerk's hands, which they thought preferable to an arrestment in Kirnan's hands, though it had been prior. The rest thought, that Kirnan and the Clerks were to be considered as the same person, and the arrestment first in date was preferable in whose-soever hands laid. To reconcile them, I proposed to mention in the interlocutor the date of the arrestments; but the President, &c. were for laying the preference on its being in the Clerks' hands; and therefore it was put to the vote, whether the interlocutor should mention the dates of the arresrments; and it carried to mention them seven to six. Minto being absent.