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Scottish Court of Session Decisions >>
Lockhart v Lord Bargany. [1666] Mor 701 (22 February 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0200701-038.html Cite as:
[1666] Mor 701
Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Lockhart v. Lord Bargany
Date: 22 February 1666 Case No. No 38.
A party having led an apprising, the sum was found not thereafter arrestable by the appriser's creditors.
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The umquhil Lord Bargany, being addebted in a sum of money to Sir William Dick, he apprised, but no infeftment nor charge followed. Thereafter a creditor of umquhil Sir William Dicks apprises; but, before the apprising, Lockhart, upon a debt due by Sir William Dick, arrests all sums in my Lord Bargany's hand, and pursues to make furthcoming. This Lord Bargany takes a right from the appriser, for whom it was alleged, That he ought to be preferred to the arrester, because the arrestment was not habilis modus, in so far as Sir William Dick having apprised for the sum in question, the apprising is a judicial disposition, in satisfaction of the sum; and so it could not be arrested, unless it had been moveable by a requisition or charge.—It was answered, That the act of Parliament, declaring arrestment to be valid upon sums, whereon infeftment did not actually follow, made the arrestment habile, and the apprising can be in no better case, than an heritable bond disponing an annualrent.—It was answered, That the act of Parliament was only in the case of bonds, whereupon no infeftment followed, but cannot be extended beyond that case, either to a wadset granted for the sum, where the property is disponed, where no infeftment had followed; or to an apprising, which is a judicial wadset, pignus prœtorium.—It was answered, That the reason of the law was alike in both cases, to abridge the lieges unnecessary expences by apprising.
