[Court of Session—First Division.]
| Jurisdiction | Scotland |
| Judgment Date | 30 November 1822 |
| Docket Number | No. 55. |
| Date | 30 November 1822 |
| Court | Court of Session (Inner House - First Division) |
Road-Statute—Arrestment.—
By the Berwickshire road-act it is declared, that the trustees shall pay into the Bank of Scotland the value of any entailed lands taken by them for the purposes of the act, in order that the money may, by a warrant from the Court of Session, on a summary petition by the party having right to the lands, be applied in the manner there directed. The trustees having appropriated part of the entailed estate of Renton, Sir John Stirling, the heir in possession, raised an action of damages against them, which they resisted. During its dependence Sir John died, after which it was carried on by his trust-disponee, and by his son, Sir Samuel, who succeeded to the entailed estate. Christie, a creditor of Sir John, then instituted an action against Sir Samuel and his brother and sisters, as representing their father, on the dependence of which he executed an arrestment against them in the hands of the trustees. As they did not represent their father, decree cognitionis tantum was pronounced. In the meanwhile, decree for a certain sum was obtained against the road-trustees. They brought a multiplepoinding, in respect of the arrestment ; but, before it came into Court, they were obliged to consign the sum decerned for, in terms of the statute. Sir Samuel, as heir of entail, having presented a summary petition, for a warrant to uplift the consigned money, it was opposed by Christie, who alleged that the fund was attached by his arrestment, and was the subject of competition in the multiplepoinding. To this it was answered,—1. That his arrestment was inept, as it was directed, not against the funds of Sir John, his debtor, but against those of his children, who did not represent him : 2. That there was no fund in the hands of the trustees ; and, 3. That it must be disposed of in terms of the statute. The Court granted the warrant.
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