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Scottish Court of Session Decisions >>
Schaws v M'Churoch. [1685] Mor 733 (10 November 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor0200733-063.html Cite as:
[1685] Mor 733
Subject_1 ARRESTMENT. Subject_2 In whose hands Arrestments may be used.
Schaws v. M'Churoch
Date: 10 November 1685 Case No. No 63.
Found as above.
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In the competition betwixt Alexander and John Schaws, who had right, by disposition from John Schaw, to certain sheep belonging to the said John, and which were also sold to John M'Churoch on the one part, and Thomas M'Neiles, who had arrested in the said John Schaw, the common debtor, his hands, on the other part:—It was alleged for M'Neiles the arrester, That he ought to be preferred, because, before the sheep were disponed to the saids Schaws, he had arrested in the said John Schaw, the common author, his own hands; after which, the saids arrested goods were so hypothecated, and really affected that they could not be disponed by his debtor, in favours of the Schaws—It was answered, That the foresaid arrestment, albeit in the debtor's own hands, was prescrived, there being no diligrnce used thereupon within the five years, and there was no speciality in arrestments of this nature, from ordinary arrestments in a debtor's hands, and the act of Parliament anent prescription was general, as to all arrestments without exception, and there was as much, if not more reason, that this should prescrive, than the other, in regard there was no record of arrestments, by which the lieges could come to the knowledge thereof, and it would utterly stop all commerce, if the buyer, or receiver of moveables arrested, should be liable for the price thereof forty years.——The Lords found, That the act of Parliament anent arrestments, being general, did extend to this arrestment, which was in the debtor's hands; but thereafter, interruption being offered to be proven, by diligence done upon the arrestment within the five years, the same was found relevant. (See Prescription.)
Fol. Dic. v. 1. p. 57. President Falconer, No 100. p. 70.*** Lord Fountainhall mentions the same case thus:
Between Shaw and Macilwraith the Lords reversed a former interlocutor, and now found, that an arrestment laid on in a debtor's own hands, expired and prescribed in five years, as any other arrestment. Quæritur, What effect this arrestment in the debtor's own hands has, except his being liable in the penal confiscation if he contravene? Some extend it even against singular successors, who could by no register know the said arrestment; which would straiten commerce too much. Yet, see Durie, 10th January 1624, Innerwick contra Wilkie, No 61. p. 733.; and Stair's Instit. tit. of Arrestments.
