Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 In whose hands Arrestments may be used.

David Cuningham, Baker in Edinburgh,
v.
George Home, Deacon, and Charles Cuningham, Boxmaster of the Incorporation of Bakers there, David Simson, agent, James Fraser and James Dougal, and others, servants to the Members of the Incorporation, in the management of their mills

Date: 18 November 1760
Case No. No 78.

Arrestment of grain belonging to one of the members of a corporation, used against the managers and servants of that corporation, the grain being in their hands for the purpose of being grinded, found not competent.

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The bakers of Edinburgh were formerly thirled to the mills belonging to that city, for all wheat grinded by them; but finding that servitude inconvenient, they, for payment of an agreed feu duty, got an irredeemable right to these mills, in favour of their than deacon and boxmaster, and their successors in office, for the use and behoof of the incorporation of bakers, and their successors.

By the regulations established for the management of these mills, it appeared, that the benefit of the feu was intended solely for the utility of the respective members, and not to have any connection with the incorporation funds; and that that benefit was communicated to the widows of suck members as carried on trade after their husband's death.

A widow of one of the members of the corporation, having brought some wheat to the mill to be grinded, David Cuningham, her creditor, arrested it, while it was grinding, in the hands of the deacon and boxmaster, clerk, and other servants of the corporation; and afterwards insisted against them in an action of furthcoming.

The deacon and boxmaster pleaded, That, as managers of the corporation funds, they could not be found liable; because the corporation neither had interest in nor possession of these mills. The feu was not granted to the corporation as an universitas, but to the particular, members, who were the proprietors and as such were both in the civil and natural possession of the mills. Nor could the feu's being taken in the name of the corporation subject the managers in this action; for it was only a name used for the behoof of the particular members. They had no concern in the management of the mills, further than as individuals of the corporation; consequently, in the present question, they fall to be considered only in that capacity.

In the next place, With regard to the arrestment used in the hands of the servants, it was certainly inept: For it was an established point, That an arrestment could not be used in the hands of the servant of a debtor, for the purpose of obliging that servant to make the goods furthcoming; as the servant's possession is understood to be the master's possession; and there can be no arrestment in the hands of the debtor himself. By the regulations for the management of these mills, the servants are the proper servants of the individual member whose grain for the time is under their care. They take their directions from, and are paid by him; and therefore, in every respect, are to be looked on as his servants.

Lastly, The arrestment in the clerk's hands can be of no avail. For he is not custodier of the grain; his sole business is to keep an account of the grain grinded for the respective members, so as to ascertain how much each is severally bound to pay.

Answered for the arrester: He is well-founded in his action of furthcoming against the deacon and boxmaster; because they, as the legal representatives of the corporation, are undoubtedly the proprietors and possessors of the mill: The feu-right is taken in their names; and arrestment in their hands is held in law as arrestment in the hands of the corporation. If any person, not a member of the corporation, had been allowed to grind wheat at these mills for his own use, and his creditor had inclined to arrest it, he would have exactly taken the same method, and it would have been effectual; and so it ought to be in the present case; for it can make no difference, that the proprietor of the wheat was in so far considered as a member of the corporation to whom the mills belong, as to have the privilege of grinding there; as the wheat was allowed to be her separate property; and it is undoubted law, That if a member of a copartnery lodges goods, which are his own property, in the hands of the copartnery, these may be arrested in the company's hands, although he is himself a member of that company.

The arrestment in the hands of the servants was also an effectual arrestment; because, both in common sense and law, a servant has such a possession as the law requires to found an arrestment: Which doctrine is confirmed by a decision in the Dictionary, voce Arrestment, where an arrestment laid on in the hands of a wife, acting for her husband, was found effectual to oblige her to make good what was in her hands at the time of the arrestment; Fountainhall, 18th July. 1706, Home contra Pringle, No 64. p. 734.

Lastly, Supposing arrestment in the hands of a servant were incompetent, the millers, in the present case, cannot, with any propriety, be considered as the servants of each particular member, during his turn, although, to avoid confusion, they are paid a certain quantity out of each parcel grinded; for they are hired by the corporation annually; the care of the mill is committed to them by the deacon and box-master, in name of the corporation; and, upon any emergency, they are entitled to give orders to the servants of the mill, not to grind for any particular member, preferable to the orders of the member whose turn it is to grind.

The Lords found the arrestment not competent.

Act. Johnstone. Alt. Montgomery. Fol. Dic. v. 3. p. 42. Fac. Col. No. 148. p. 455.