Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Earl of Aberdeen
v.
Creditors of Scot of Blair

Date: 20 November 1739

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[Elch., No. 13, Arrestment; Kilk., No. 6.]

This affair we have taken notice of before, December 12, 1738. This day there were two questions debated:—1mo, Whether an arrestment in the hands of an apparent heir was valid and preferable to a posterior arrestment in the hands of the same heir after he had entered?

The Lords found it was; upon this principle of law, Qui hæres aliquando extitit, a morte testatoris successisse videtur. Arniston was even of opinion that if the apparent heir had died without being entered, that, notwithstanding, the arrestment would have been good. But the majority of the bench did not seem to be of his opinion.

The second question was, Whether an arrestment could be laid on, and a summons of forthcoming executed thereon at the same time; or whether a summons of forthcoming could first be raised and signeted, then the arrestment upon which it proceeded laid on, and immediately after the summons of forthcoming executed?

It was alleged that this method saved time and expense to the lieges, and had no bad consequences, and besides, it was the practice. The Lords had no occasion to decide this point, the affair being determined by the decision of the first; but they seemed to be of opinion that it was a very irregular practice, and it was denied from the bar that it was the practice save in the Admiralty Court, which the Lords did not much regard.