Scottish Court of Session Decisions

Subject_1 COMPETITION.
Subject_2 SECT. XV.

Annualrenters; - Adjudgers; - Inhibiters; - Assignees, &c.

Colonel Cuninghame
v.
Lyll

Date: 1 February 1666
Case No. No 88.

Two decrees of furthcoming being pronounced in the same day; the one arrestment being laid a day sooner than the other, was preferred.

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In a competition between Colonel Cuninghame and Lyll, both being arresters, and having obtained decreets, to make furthcoming in one day; and Colonel Cuninghame's arrestment being a day prior; he alleged he ought to be preferred, because his diligence was anterior, and his decreet behoved to be drawn back to his arrestment. It was answered for Lyll, That it was only the decreet to make furthcoming, that constitute the right; and the arrestment was but a judicial prohibition, hindering the debtor to dispone, like an inhibition; or a denunciation of lands to be apprised, and that the last denunciation, and first apprising would be preferred: So the decreet to make furthcoming is the judicial assignation of the debt, and both being in one day, ought to come in together. It was answered. That in legal diligences, prior tempore est potior jure, and the decreet to make furthcoming is declaratory, finding the arrested to belong to the arrester, by virtue of the arrestment; and, as for the instance of apprisings, the first denunciation can never be postponed, unless the diligence be defective; for, if the first denouncer take as few days to the time of the apprising as the other, he will still be preferred.

The Lords preferred the first arrester, being equal in diligence with the second. See Arrestment.

Stair, v. 1. p. 346.