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.

James Neil
v.
John Brown

Date: 8 July 1773

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[Faculty Collection, VI. 155; Dictionary, App. I. Arrest. No. 3.]

Pitfour. The practice of that sort of diligence called filius ante patrem, may be reasonable in maritime causes, but it is not in mercantile. The practice is erroneous, a slovenly imitation of what has been done in maritime causes; and cannot be supported.

President. I do not so much as see a practice proved. I will not receive the evidence of the Judge-Admiral and of his procurators, to prove a practice which will destroy the officers of other Courts.

Justice-Clerk. There are no examples of this practice, but a very few within these five or six years, and these, too, litigated; which shows the thing to have been a novelty. The diligence itself is anomalous. I cannot conceive any practice more hurtful to commerce and the credit of merchants, than one which may lock up their effects to any extent at the instance of they not who. If I saw a fixed practice, I would suppose that the nation was wiser than I, and had acquiesced in it; but I see nothing of this kind.

On the 8th July 1773, the Lords, in respect that Brown's arrestment was not in a maritime cause, and was executed before creating a dependance by citation of the common debtor, preferred Neil's, which was regularly executed; adhering to their own interlocutor of the 26th February 1773, and to Lord Stonefield's interlocutor.

Act. R. Cullen. Alt. J. M'Laurin.