Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES bURNETT, LORD MONBODDO.

Cunningham
v.
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Date: 17 November 1760

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[Fac. Coll. II, No. 248.]

In this case there was a very general question debated among the Lords, viz. What kind of detention or possession of a moveable subject was necessary to be the foundation of an arrestment? The question occurred concerning the arrestment of grain carried to the mill, in the hands of the miller, for the debt of the person to whom it belonged. It was agreed that there can be no arrestment in the hands of the servant, because it is the master who possesses, not the servant; and, therefore, it was said, by Lord Coalston, that while the servant of the proprietor of the grain continues with it at the mill, it is still in his own possession, and the miller is only employed to perform a certain operation upon it, but has no possession or custody of it any more than the smith whom I employ to shoe my horse has of the horse. But what if the servant should go away and leave the corn in the mill ? In that case it was the opinion of Lords Coalston and Auchinleck, that, besides the locatio operarum, the miller had the care and custody of the grain, for which he was answerable; and, therefore, an arrestment could be laid on in his hands; and it was compared to the case of a man putting up his horse in a livery stable, or sending his coat to a tailor to be mended. But Lord Alemore and the majority were of opinion that a momentary possession, for a particular purpose, was not such a possession as could be the foundation of an arrestment.