Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Innes
v.
Forbes

Date: 25 January 1740

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[Kilk., No. 7, Arrestment.]

There had been a competition betwixt an arrester and indorsee, about a bill due to their common debtor, in which the arrester prevailed. The question now came about the arrester’s expenses. It was allowed that they could not come off the subject arrested, which could only be affected by the debt which was the ground of the arrestment; but quære, Whether the arrester could not retain, for his expenses, a bill due to the common debtor, which had been indorsed to him for security of the debt now satisfied by the arrestment, and which, for that reason, the other creditor, viz. the indorsee, contended should be given up to him.

The Lords found the arrester might retain the bill for his expenses, in respect that it was hypothecated to him for security of his debt, that is, principal, interest, and expenses; and that he was obliged only, ex gratia or æquitate, to give it up to the other creditor, to whom he lay under no obligation.