[Court of Session—1st Division.]
| Jurisdiction | Scotland |
| Court | Court of Session (Inner House - First Division) |
| Judge | Lord Meadowbank,Lord President,Lord Balgray,Lord Gillies,Lord Craigie |
| Judgment Date | 13 November 1828 |
| Docket Number | No. 1. |
| Date | 13 November 1828 |
Lord Meadowbank, Lord President, Lord Balgray, Lord Gillies, Lord Craigie
Arrestment—Competition—Husband and Wife.—
Ebenezer Thomson, barrackmaster at Leith Fort, married the advocator Mrs. Lockhart in 1811. His salary and emoluments were about £260. In 1817 he was incarcerated for debt, and afterwards raised a process of cessio, but did not obtain decree. He then entered into an arrangement with his creditors, by which he assigned to them a portion of his salary in payment of his debts, which did not exceed £500. In November 1820 his wife left his house on the ground of maltreatment, and on the 8th of March 1821 she raised a summons before the Commissaries of Edinburgh of separation a mensa et toro, concluding for aliment to herself and her children. On the dependence of this action, and on the same day, she executed an arrestment in the hands of the executors of a Mr. Hutchison; and the summons was executed against her husband on the following day. The respondent Sharp, being a creditor of Thomson, raised a summons against him, in virtue of which he also arrested in the hands of Hutchison's executors on the 8th of June 1821, and obtained decree on the 24th of October.
After considerable procedure before the Commissaries, they decerned in the separation a mensa et toro, awarded £65 per annum of aliment to his wife, the advocator, and £20 to each of his sons.
He died in 1823; and, in the mean while, several other creditors having arrested, a multiplepoinding was raised by Hutchison's executors before the Sheriff of Edinburgh, in which the advocator lodged a claim, and a competition took place between her and the other creditors, but which ultimately came to depend between her and the respondent Sharp. The Sheriff having preferred him, she brought an advocation, in which the Lord Ordinary advocated the cause, and preferred Sharp, but found no expenses due. Both parties then reclaimed—the advocator on the merits, and Sharp as to expenses.
Against the validity of the arrestment Sharp objected, That by the 20th article of the Instructions of the Commissaries, 22d January 1666, it is declared that they shall give forth no precepts in matters above '£40 till the decree be extracted;' and as the sum of aliment concluded for by the advocator exceeded £40, and her arrestment had been executed on the dependence, it was inept.
To this she answered, That the...
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