Eastburne v. Cowan & Co.

Question —Whether it is competent to arrest in the hands of a procurator-fiscal Page: 375 ↓

On 28th February the money came into the hands of the Sheriff-Clerk of Midlothian for the purpose of the trial. On 9th March the thief was tried before the Sheriff with a jury at the instance of the Procurator-Fiscal of Midlothian and convicted.

Cowan & Co. raised this multiplepoinding in name of the Procurator-Fiscal and Sheriff Clerk to determine the question between them and Eastburne, the other arresting creditor of Hale, as to which of them was entitled to obtain the money from the nominal raisers.

Both Cowan & Co. and Eastburne claimed the whole fund, each claiming a preference in respect of their arrestments. After a proof the Sheriff-Substitute ( Rutherfurd ), on the ground that East-burne's arrestment was premature and attached nothing, sustained the claim for Cowan & Co.

“ Note —The facts as to the times the fund in medio came into the hands of Mr Stuart and Mr Whitten, and the dates of the respective arrestments, are now beyond controversy. The objection taken at the debate under this appeal, that the fund was not arrestable in the hands of the Procurator-Fiscal or the Sheriff-Clerk, was not stated before; and it is thought besides that it is not well founded.”