Scottish Court of Session Decisions

Subject_1 IMPROBATION.
Subject_2 SECT. IX.

Abiding by.

Rae
v.
Blackwood

Date: 10 December 1703
Case No. No 199.

An arrestment was laid against ten persons, and all the executions put on one paper. The execution was used against only one of them, who challenged it. Found, that the user need only abide by with regard to that one execution.

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Sir George Weir of Blackwood being creditor to Corse in Glasgow, he arrests in the hands of John Graham and nine other persons supposed debtors to Corse; and after a long competition among the arresters, Sir George's diligence is preferred to them all, in so far as concerns the sum in Graham's hand. Then compearance is made for Bailie Rae in Glasgow, a co-creditor; and he propones improbation of Blackwood's execution of arrestment, and offers to consign, urging Blackwood may simply abide by the verity of the messenger's execution, containing nine or ten several persons, in whose hands he had laid on arrestments at Blackwood's instance. It was answered for Sir George, That though they were all contained in one execution, yet he made use of it for no other end but to reach and affect the sum in Graham's hand; and, in so far as concerned him, he was willing instantly to abide by the verity of the execution sub periculo falsi (though he was not bound to warrant messenger's deeds, whom he never saw nor knew,) but quoad the rest he was not insisting against them; and when he did so, it was time for Bailie Rae to urge him to abide at the truth thereof. Replied, That employers of messengers, and users of their executions, were as well obliged to abide simply as the messenger executor himself was; and it is not enough to abide with this quality, that it was truly so delivered to him; but here the whole ten being all in one context of an execution, if it was false quoad some of them, it must fall quoad Graham and all the rest, seeing such a judicial executive act cannot divide, even as a retour erroneous in one of the heads of the brieve falls as null in toto; and one of the witnesses here, called Millar, is known to have been accessory to sundry the like forgeries before, and has been convicted thereof. Duplied, Though the messenger, to hold in his pains of transcribing many copies, has put all the ten in one paper, yet the one has no manner of dependence upon the other; and esto quoad some of them the execution were false, yet that can never falsify or annul those that were truly done; and the arrestment is the same as if there had been as many separate and distinct executions, as there were different persons in whose hands the arrestments were used; in which case, it would be ridiculous to pretend, that because one of them is false, therefore those attested and asserted by the messenger in other executions are false too; and though Sir George has no ground to doubt the veracity of the whole, yet he is not obliged in this case to put either his honour, life, or estate, upon a messenger's deed, at which he was not present. The Lords, on Rankeilor's report, found Sir George not liable to abide by the execution any farther than he had made use of it, which was only against Graham; without prejudice of their forcing him to abide by its verity, simpliciter, when he insisted against the rest contained in that execution.

Fol. Dic. v. 1. p. 454. Fountainhall, v. 2. p. 198.