Scottish Court of Session Decisions

Subject_1 ARRESTMENT.

Lochwood
v.
Wilson, Creditors of Sir James Campbell

Date: 4 July 1738
Case No. No. 8.

Arrestment of a sum consigned.

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Campbell of Kirnan being debtor by several adjudications to Auchinbreck, they came, during a process of count and reckoning, to an agreement, struck the balance at about L.6000, but upon payment of L.4000 against Martinmas, Auchinbreck was to discharge him. On the 3d of November, Kirnan made a tender of the money, and upon Auchinbreck's refusal, applied to the Ordinary, and by his allowance, on the 11th November, consigned it. Lochwood, as creditor to Auchinbreck, arrested 12th and 13th November, in the clerk's hands. Wilson, another creditor, arrested in the hands of both Kirnan and the clerk's, on the 17th and 18th November; and the Ordinary, 19th November, by an interlocutor then signed, but pronounced some days before, sustained the consignation; and thereafter, in the competition betwixt the arresters, found that the consignation did not transfer to Achinbreck the property of the money, till it was judicially sustained, and therefore that it was not affected by Lochwood's arrestment, and preferred Wilson; but the Lords preferred Lochwood, though they were divided in the reasons of preference. Some indeed thought the money not at all arrestable, because secured by adjudication; but that being got over, some thought Lochwood's preferable, because in the clerk's hands, which they thought more habile than in Kirnan's; others thought it preferable only because prior in date, and thought both arrestments equally habile; and upon a narrow division, it carried to mention the dates of the arrestments in the interlocutor. (See Dict. No. 68, p. 736.)