Scottish Court of Session Decisions

Subject_1 LITIGIOUS.
Subject_2 DIVISION II.

Litigious by Arrestment.

Sir Andrew Cowper
v.
Lady Halton

Date: 26 January 1625
Case No. No 29b.

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Sir Andrew Cowper pursued Lady Halton younger as executrix to her husband, to make some arrested goods forthcoming. She excepted, that all was exhausted by lawful decreets obtained against her. Replied, That he could not be prejudged, who had arrested long before these decreets in her own hands, and that therefore she was in pessima fide to pay any other with that gear; and where she alleges a necessity inforced upon her. Answered, she could have had recourse to a double poinding, whereby she might have freed herself from all danger. This being hotly reasoned, and many thinking that an arrestment did so really affect the goods, that it could be never frustrated by any decreet obtained by a third person, the arrester not being called thereto; nevertheless, the exception was admitted, because it was thought, that in a donble poinding the other creditors who had used greatest diligence, would be preferred before the arrester.

Spottiswood, (Arrestment) p. 16.

*** See Durie's report of this case No 52. p. 3865. voce Executor.