Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Warrant of Arrestment.

Elizabeth Oliphant
v.
Archibald Campbell

Date: 21 February 1750
Case No. No 8.

Arrestment sustained, proceeding on the warrant in a summons of constitution from the Sheriff, although the party was not cited, previous to the arrestment.

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William Shiells being debtor to Elizabeth Oliphant, daughter of Mr James Oliphant of Langtoun, she arrested in the hands of Mrs Forbes, a debtor of his, and pursued a furthcoming before the Sheriffs of Edinburgh; and Mrs Forbes called, in a multiplepoinding, Archibald Campbell brewer in Edinburgh, a posterior arrester; who objected, That the pursuer’s arrestment proceeded on a warrant contained in the summons of constitution; whereas the party ought first to have been cited, and then a warrant sued out for arrestment: Whereupon the Sheriff preferred the pursuer; and the cause being craved to be advocated, the Lord Ordinary, 3d January, ‘Remitted, with an instruction sustain the objection.’

Pleaded in a reclaiming bill: It is the constant practice before the Sheriff courts, to grant warrant to cite, and thereupon to arrest; and it is not denied the citation was given before execution of the arrestment.

Answered: The warrant for arrestment on a dependence, ought to be issued after the dependence is created by the citation; and so the practice frequently is before the Sheriffs, and constantly before the Court of Session.

The Lords remitted, with an instruction to repel the objection.

Act. Boswel. Alt. Macqueen. Clerk, Pringle. Fol. Dic. v. 3. p. 39. D. Falconer, v. 2. p. 150. *** Lord Kilkerran mentions the same case thus:

Mrs Forbes, in whose hands several arrestments were laid by the creditors of William Sheills, pursued a multiplepoinding before the Sheriff of Edinburgh, wherein she called the two arresters, Elizabeth Oliphant and Archibald Campbell, and William Sheills the common debtor. In this process it was objected by Archibald Campbell to Elizabeth Oliphant’s arrestment, That though prior in date, it was void, in respect it proceeded on a precept adjected to the will of the summons of constitution against her debtor Sheills; whereas precepts for arrestment on a dependence, can only be granted after a citation returned, as thereby the dependence is created, 2do, He offered to improve the execution of the summons on which her extracted decree of constitution against Sheills had proceeded; both which the Sheriff repelled.

And he having complained by a bill of advocation, the Ordinary before whom it came, ‘Remitted to the Sheriff to sustain both objections.’

But she having reclaimed, the Lords were of opinion with the Sheriff on both points. On the first, it being the common practice of inferior courts to issue the precept of arrestment in the summons for constitution, different from what is the form in processes before the Lords. On the second, because as Sheills had appeared in the process of constitution against him, and acknowledged the debt, and for which decree proceeded against him, it was not competent for Campbell, who neither was nor could be party in that process, to object to the execution of the summons on which the decree proceeded.

But a third objection being made in the answer to her petition, viz. That the arrestment was laid on eleven days before the summons of constitution was executed; the Lords, for that reason, and that only, ‘passed the bill of advocation’.

Kilkerran, (Arrestment.) No 18. p. 46.