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Miller v Crawford, Osburn, and The Laird of Bishopton. [1671] Mor 7293 (5 December 1671)
URL: http://www.bailii.org/scot/cases/ScotCS/1671/Mor1807293-001.html Cite as:
[1671] Mor 7293
Miller v. Crawford, Osburn, and The Laird of Bishopton
Date: 5 December 1671 Case No. No 1.
An arrestment upon a bailie's precept executed extra territorium is null, although the debtor live within the bailiary.
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Robert Kelso being debtor to the said parties, and having sold his lands of Kelso bound to Bishopton the same day of the disposition, he assigned Crawford and Osburn for satisfaction of the sums; who intimate that same day; and that same day Mr Andrew Miller arrested in Bishopton's hand, and pursues to make forth-coming. The assignees alleged, They must be preferred, because the arrestment is null, being upon the Bailie of Cunningham's precept of arrestment executed at Paisley, extra districtum. It was answered, Bishopton was dwelling within the Bailliary, albeit he was found without the same; and the execution of arrestment being but the intimation of a judicial act, whereby the Judge arrests all the debtor's goods within his jurisdiction, it was sufficient, especially seeing the debtor was bankrupt, and by his assignation did prefer one creditor to another, and that the Bailie of Cunningham is also Sheriff of Renfrew Where Paisley lies.
The Lords found the arrestment null, and preferred the assignees.
Fol. Dic. v. 1. p. 491. Stair, v. 2. p. 18.*** Gosford reports this case:
In a double poinding raised at the instance of the Laird of Bishopton against Mr Andrew Miller and Hugh Crawford, the debate for preference was, that Miller had arrested upon a precept granted by the Bailie of Cunningham, that same day that Crawford as assignee had intimated his assignation. It was alleged, for the assignee, That the arrestment could not be respected, because it was executed at Paisley, which was not within the jurisdiction of the Bailie of Cunningham. It was answered, That Bishopton did live within the Bailiary, and so the arrestment might be executed at any place without the same. The Lords did find the arrestment null as being executed extra districtum.
