Legal Subject: Arrestment

Case Date Legal Subject Abstract
Alexander Melvil v. James Barclay 23 Jan 1779 Currente Termino, Ranking of Creditors, Arrestment, Void Poinding This case concerns a competition between Alexander Melvil and the other creditors of James Davie, brewer in Cupar, whose affairs went into disorder in the summer of 1775. Davie's moveable effects were sold by public roup (auction) that September, under the authority of the Sheriff of Fife. Alexander Melvil had previously executed a void poinding on these effects and entered a claim to them on this basis, which the Sheriff rejected. After the poinding was carried out by Robert Stark, the sequestrator, Melvil contested the goods once again. On August 5, 1777, Lord Braxfield found Melvil's claims to the goods preferable to Davie's other creditors and servant's wages. The other creditors of Davie then petitioned the Court to review Braxfield's interlocutors. In addition to asking the court to deny Melvil's claim, they also argued that the wages of James Barclay, late servant to James Davie, formed a disadvantage case, and should be given preference. The Court ruled that wages were to be considered privileged debts, and preferable to Melvil's claim.
Brebner v. Brebner 1767 Arrestment, Cautioner Helen Brebner, as executor for her deceased husband, gave her brother, Alexander Brebner, use of select estate funds. Helen won an action to retrieve this money from Alexander, and he challenged this judgment. Helen's husband, James Frigge, died in 1756, after naming Helen executor of his considerable finances, which consisted mainly of bills and bonds. When Helen received money for payments of debts due to her former husband, she allowed her brother Alexander use of these funds. Helen claimed that she put the money in Alexander's hands after he advised her that allowing him to invest the money in trade would increase the funds. Helen argued that as Alexander's credit declined and as he fell into debt, she sought to get back the money, which he refused. Alexander claimed, alternatively, that Helen had put the money in his hands for security as she drew on him for funds as needed. Eventually, Alexander argued, he became dissatisfied with Helen's management of the finances and refused to allow Helen any additional money. Alexander offered Alexander Ogilvie of Culvie as his cautioner, to which Helen did not consent based on the state of his finances.
Briggs v. Stark and Balfour 1778 Hypothec, Arrestment This case was about the effect of a landlord’s “hypothec,” which was a right to retain or recover the fruits of leased property as security for rent. David Peebles, a tenant, fell behind on rent that was due to his landlord, Janet Balfour. Balfour obtained a Sheriff’s decree to sequester Peebles’s crops; the order covered the current year’s rent, as well as past and future years. Defender Robert Stark, as sequestrator, auctioned off the crops and used the proceeds to compensate Balfour. However, John Briggs, another creditor of Peebles, challenged Balfour’s right to anything more than the current year’s rent. Stark and Balfour responded that the Sheriff’s decree entitled Balfour to any proceeds up to the amount of her entire claim. The Sheriff found no balance due by Stark to Peebles, and Briggs' arrestment was rendered useless. Briggs then submitted his case to the Court of Session by bill of advocation, and it came before Lord Alva. Alva ultimately repelled the reasons of advocation and Briggs petitioned the Court to alter this decision. Marginalia on the case documents indicates that the Court may have indeed altered Alva's decision.
Clifford and Sons v. Mosman 1772 Poinding, Arrestment, Ranking of Creditors John Syme and Son, merchants in Leith, owed money to Clifford and Son, pursuer, merchants in Amsterdam. Due to the nature of the transaction, the money was required to pass through the hands of William Hogg and Son, merchants in Edinburgh. (In the transaction, another person, Archibald Maclean, advanced money to William Hogg and Son, which they in turn gave to John Syme and Son. McLean was then reimbursed by Clifford and Son). William Hogg and Son subsequently encounter financial problems, which raised the possibility that its creditors would to collect the money. Clifford and Son sought to avoid this possibility. Hugh Mosman, a writer in Edinburgh and creditor of William Hogg and Son, claimed an interest in the payment from John Syme and Son to William Hogg and Son. Clifford and Son disputed Mosman's claim by arguing that they were entitled to the payment because they provided the funds in the first place.
Competition Among the Creditors of Macfarlane Dec 1766 Debt, Arrestment, Shipping This case was a dispute among the creditors of David Macfarlane, a merchant of St. Christophers (St. Kitts). In 1764, Macfarlane sent a shipment of sugar from St. Croix to Port Glasgow, consigning it to James King. Macfarlane instructed King to sell the sugar and apply the proceeds to pay certain of Macfarlane’s creditors, who were set forth in a list. When the sugar arrived in Scotland, however, some of Macfarlane’s creditors sought an arrestment. This led to a competition among Macfarlane’s creditors. In the course of the proceeding, the Lord Ordinary ruled that the consigned sugar could not be arrested, and a group of joint petitioners sought review. In August 1766, the Court of Session ruled against them. In November 1766, Messrs. Greenshiels and Wardrope petitioned the court again, this time on their own, arguing that they should be treated differently from other creditors because they did not receive notice of the shipment. In December 1766 the Court adhered to its earlier interlocutor.
David and Hugh Mitchell v. William Ferguson 13 Feb 1781 Arrestment These case documents constitute a prelude to the reported case of David and Hugh Mitchell v. William Ferguson. In 1769, Agnes Carsan purchased a house in Ayr from William Donald. Because she believed her son-in-law to be holding money for the house on her behalf, no bills or securities were filed, and the disposition of the house was held by James Fergusson, Provost and writer in Ayr. Later William Donald became bankrupt and arrestments (securities) were laid in the hands of Carsan and Hair-Campbell. William Ferguson, claiming that he had paid Donald for the price of the house on behalf of Carsan, brought action against Carsan for either a disposition of the house or repayment. On March 3, 1779 the Court ruled that Ferguson was entitled to either the price or a disposition on the house. Donald's creditors, David and Hugh Mitchell, later brought action, in competition with Fergusson for rights to the house. On February 13, 1781 the Court determined that the infeftment (legal claim) possessed by the Mitchells was preferable to the personal right claimed by Fergusson.
Grant v. Thomson 1776 Debt, Arrestment Pursuer John Grant was a creditor of John Taylor, who became insolvent and unable to repay Grant. Grant obtained two letters of horning against Taylor for his failure to repay. Grant learned that defender George Thomson, an innkeeper in Leith, was a debtor of Taylor. Grant used arrestments to bring an action against Thomson for the sum he owed to Taylor. Thomson had granted two bills payable to Taylor for the sum owed, which were then indorsed by Taylor to defender Alexander Ogilvie as clerk of the Edinburgh rope-work company. (Taylor owed money to this company for the purchase of ropes and sails.) The defenders argued that sums due by bill were not subject to arrestment. Grant conceded that this was true in the case of a bona fide indorsee. Grant maintained, however, that the bills were subject to arrestment where transactions were used to shield a debtor's assets from creditors. The defenders responded that the transactions at issue were bona fide and arms-length transactions.
Hammond, Birket, and Smith v. Marshall 1784 Arrestment Hammond, Birket, and Smith, pursuers, attempted to arrest (legally claim) funds in the hands of Claud Marshall, a writer in Glasgow, on the ground that Claud possessed funds belonging to their debtor William Marshall. William was in Tobago, and he had sent a bill to Claud with instructions to apply it for the support of William’s daughters. Hammond, Birket, and Smith argued that Claud possessed the bill when the arrestment was used. Claud responded that he had sent the bill off to London by that time, and that payment was made to William’s children.
Murray v. McNaught 24 May 1799 Arrestment, Debt James Murray brought an action against John McNaught, the former minister for the parish of Girthon, accusing him of fiscal irresponsibility. Murray, who supplied McNaught's stipend, accused the minister of squandering his income and racking up debts. Murray sought to recover funds from McNaught.
Robert Arthur, Merchant in Irvine v. Messrs Hastie & Jamieson, Merchants in Glasgow 12 Dec 1770 Arrestment Two merchants in Virginia, Archibald Dunlop and David Ralston, owed money to James Dunlop, a merchant in Glasgow. James Dunlop, in turn, owed money to pursuer Robert Arthur. Arthur obtained a judgment against James Dunlop and arrestments for the debts Archibald Dunlop and Ralston owed to James Dunlop. Despite these arrestments, Archibald Dunlop then entered into a private contract with defenders Robert Hastie and James Jamieson, merchants in Glasgow. Archibald Dunlop sent from Virginia to Clyde a vessel with tobacco and goods consigned for Hastie and Jamieson. Arthur learned of this shipment, obtained letters of arrestment, and arrested the cargo before it came into the possession of Hastie and Jamieson. Hastie and Jamieson obtained letters of loosing to reclaim the cargo. Through a process of multiple poinding, the creditors of Archibald Dunlop disputed their respective rights and interests. Arthur claimed he has priority based on the outstanding debt Archibald Dunlop owed to James Dunlop. Hastie and Jamieson cited the private contract they executed with Archibald Dunlop.
Watson v. Stewart 1780 Bill (Financial Instrument), Onerous Indorsation, Arrestment This case, which stretched from November 1776 to February 1780, concerned a bill for £14 sterling drawn by William Stevenson and accepted by James Stewart. Both parties went to elaborate lengths to disappoint the other in their attempts to recover and argue for compensation of this bill. After Stevenson endorsed the bill to James Watson, the latter allegedly secured an arrestment (detention) of Stewart's horses and chaise at the Golf House in Leith. The Court ultimately ruled in favor of Stewart, the suspender, declaring Watson, the charger, liable for expenses.