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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Neilson and Rae, and Others, Creditors of Robertsons, Competing. [1745] Mor 677 (11 January 1745)
URL: http://www.bailii.org/scot/cases/ScotCS/1745/Mor0200677-007.html
Cite as: [1745] Mor 677

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[1745] Mor 677      

Subject_1 ARRESTMENT.
Subject_2 Warrant of Arrestment.

Neilson and Rae, and Others, Creditors of Robertsons, Competing

Date: 11 January 1745
Case No. No 7.

Horning against a trustee, a sufficient warrant for arrestment on debts in which he and his constituents were bound conjunctly and severally.


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James Robertson, by his testament, disponed his whole moveable effects to Robert his uncle, for the behoof of his the said James's creditors in the first place, and the residue for the behoof of his wife and children. Of which disposition Robert having accepted, certain persons, to whom James and Robert were jointly and severally bound, did, after the death of James, raise horning on their bonds against Robert, and thereupon arrested not only in the hands of the debtors of Robert, but also in the hands of the proper debtors of James.—And thereupon having pursued furthcoming, it was objected by the other creditors of James, who had confirmed executors-creditors to him, That the arrestments in the hands of the debtors of James were ineffectual, having no other warrant than what was in the ordinary stile of a horning against Robert, viz. to arrest, &c. all goods pertaining to Robert, and of course the arrestments were only of Robert's effects. But so it is, that James's effects were not transferred to Robert for his own behoof, but only in trust; and therefore, without a process or decree against Robert as trustee, the arrestment of the effects of James was ineffectual.

This the Lords ‘repelled, and sustained the arrestments.’

It was considered, that even though such process had been pursued, and decree obtained against Robert, the form of the warrant and arrestment had both been the same as for the debt of Robert. Wherefore, as James's effects were disponed to Robert, and that James was jointly bound with Robert in the debts, which were the ground of the diligence, it was thought not necessary for the creditors to have any other warrant.

Fol. Dic. v. 3. p. 38. Kilkerran, (Arrestment.) No 14. p. 43.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1745/Mor0200677-007.html