Scottish Court of Session Decisions

Subject_1 ARRESTMENT.

Creditors of Glendoning
v.
Montgomery

1745, June 9.
Case No. No. 23.

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Macbiehill, as factor for the Earl of March, being creditor to Glendoning in a bill, sent it to the Clerk of Peebles to protest and registrate it, which he did at Peebles, though the bill was not payable there, nor the debtor nor his residence there; and in his protest mentioned a procurator compearing, and witnesses present, though neither was true. This protest was taken and registrate; 6th January horning was raised, and executed 6th May, but nothing further done till the day after he broke in October;—and then he poinded a number of sheep, which sheep he did not dispose of till the Whitsunday following. And the preceding November the other creditors arrested in Macbiehill's hands. And in the forthcoming, the above facts were proved, and the creditors insisted that the poinding being null and illegal, Macbiehill should make forthcoming to them, or value of them. We all agreed, that Macbiehill's bona fides ought to defend him against all personal consequences; but several of us thought, that it could not defend against restitution; others thought the sheep coming bona fide into his hands, he could not be bound to restore to the common debtor, without payment of his debt, and the same defence should be good against arresting creditors. The Lords found him not bound to restore till he be paid his debt. Renitentibus President, Minto, Tinwald, et Me. This passed the 9th instant;—and on a reclaiming bill this day, 14th June, we adhered. Renitente also Kilkerran.