Scottish Court of Session Decisions

Subject_1Process
Subject_2Petition for Recall of Arrestments
Subject_3Competency of Proof.
Facts:

A petition prayed for the recall of arrestments used by the respondent on the goods of a third party, the petitioner stating that the goods had become his property before the execution of the arrestment. It was averred by the respondent that there had been no real bona fide transaction between the parties, and that the alleged sale was a pretence to avoid the diligence. On a motion by the petitioner to allow the respondent a proof of his averments, the Court held that these being statements respecting the validity of the arrestments, must be tried in the action of furthcoming, and that no proof on such questions could be allowed in the petition.

Observed ( per the Lord President) that under such a petition the Court must be able to say “either (1) that arrestments should never have been used at all, or (2) that they should be recalled upon caution being found.”