Subject_1 ARRESTMENT. Subject_2 In whose hands Arrestments may be used.
John Campbell v. Joseph Faikney
Date: 12 December 1752 Case No. No 74.
Arrestment used in the hands of the trustees of the debtor to the common debtor, upon which decree of furthcoming was taken against the constituent, found not good.
Click here to view a pdf copy of this documet : PDF Copy
Joseph Austin of Kilspindy granted a promissory-note, dated at London, for L. 50, payable to David Graham merchant in London. Austin, having put his estate into the hands of trustees, went abroad. John Campbell, cashier of the Royal Bank of Scotland, raised a process against David Graham for payment of certain debts; and upon the dependence arrested, not in the hands of Austin, the debtor of Graham, but in those of Austin's trustees. Thereafter Campbell having obtained a decreet of constitution against Graham his debtor, raised a furthcoming against Austin's trustees, and also against Austin himself, who, by this time, had returned to Scotland; but he took the decreet of furthcoming against Austin only, not against the trustees.
The promissory note in question had been indorsed by a blank indorsation to Andrew Pringle merchant in London; but whether before or after the arrestment, did not appear. Andrew Pringle sold the note, as it stood, without indorsing his own name upon it, to Joseph Faikney merchant in London: this was after the date of the arrestment. In a multiple-poinding, at the instance of Austin, Faikney, the indorsee, objected to Campbell's arrestment, that it was null and void, because used not in the hands of Austin, the debtor to Graham, but in the hands of Austin's trustees; for that such an arrestment was no better than if used in the hands of Austin's factor: the trustees might be debtors to Austin, but were not so to Graham.
2do, The decreet of furthcoimng was informal, in so far as it was obtained, not against the trustees in whose hands the arrestment was laid, but against Austin, in whose hands no arrestment was laid.
Answered for the arrester, That the trustees and Austin were eadem persona; and the trustees being debtors to Austin, must be considered as debtors to Graham: This will also account for the taking the decreet against Austin himself, who acknowledged his having granted the note.
There were also other points argued; particularly this, viz. Whether the promissory note in question, because granted in England, where promissory notes have the like privileges as bills of exchange, should therefore be considered as if it had been a bill? Many of the judges gave their opinion in the affirmative; but it being moved by one of the judges, to put the question only upon the objection to the arrestment,
The Lords sustained the objection to John Campbell's arrestment, and therefore preferred Joseph Faikney the indorsee.
For the arrester, Ja. Ferguson.For the indorsee, H. Home.Clerk, Gibson.
Fac. Col. No 44. p. 64.
