Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ARRESTMENT.
Subject_3 An Arrestment betwixt the hours of four and six, preferred to one betwixt six and nine.

Messrs Gibson and Balfour
v.
George Goldie

Date: 26 February 1779

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[Fac. Coll. III. 45; Dict. 824.]

Braxfield. Goldie's arrestment in the hands of the managers and clerk is good; so that the only question is as to the priority of arrestment. When particular hours are mentioned, the meaning is, that, although the messenger is not certain as to the precise minute, he is certain that such a thing was done between one hour and another: This excludes any after hour. In this view, the two competing arrestments can never interfere.

Hailes. So it was determined, after very mature consideration, in the case of Mrs Jean Cameron and Thomas Boswel.

President. The argument in that case seemed conclusive on a case put. There is one arrestment between seven and eight, another between six and seven, and another between five and six: if the arrestment between seven and eight be considered as preferable pari passu with that between six and seven, it follows that the arrestment between six and seven is preferable pari passu with the arrestment between five and six; and consequently the arrestment between seven and eight, and that between five and six are on a footing. The same argument might be carried on from sun-rising to sun-setting, and the necessary consequence would be, that all arrestments executed on the same day are preferable pari passu; for this, there is no authority.

[The unavoidable consequence would be, that an execution of arrestment, between six and seven in the morning, would be preferable pari passu with one between six and seven in the evening; which is absurd.]

Monboddo. Goldie's debt is not proved, and therefore his arrestment cannot compete with an arrestment on a debt proved.

[This was universally rejected, as reprobating all arrestment on a dependance, and all claims on a decreet in absence.]

On the 26th February 1779, “The Lords preferred George Goldie;” adhering to Lord Auchinleck's interlocutor.

An Arrestment betwixt the hours of four and six, preferred to one betwixt six and nine.

Act. A. Elphinstone. Alt. A. Crosbie.