Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Ranking of Arrestments.

Sir Robert Montgomery
v.
Alexander Rankin

Rankin
v.
Skelmorlie and Dunlop

Date: 23 November 1667
Case No. No 156.

A first arrester preferred, though a second had first obtained decree of furthcoming. The second had taken his decree before the sheriff; the first was proceeding before the Court of Session, where process is more tedious.

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Sir Robert Montgomery having obtained decreet against Antonia Brown, as representing Sir John Brown, her father, for 2000 merks, arrests the price of a chain due to Antonia, in the hands of the Lord Melvil, and pursues to make furthcoming; compears Alexander Rankein, and produces a decreet obtained against Antonia, and thereupon an arrestment by the Sheriff of Fife's precept, and a decreet of the Sheriff thereupon, in July last, the arrestment being in the same month, and craves preference, because he had the first complete diligence.—It was answered, That Sir Robert having first arrested in March last, and first intented process thereupon before the Lords, and having insisted therein the last Session, was kept off by the compearance of the Lady Cullerny, who also pretended right to the chain, and had failed in no diligence, and therefore ought to be preferred to a posterior arrestment, albeit it have the first decreet of an inferior court; both arrestment and citation being after his, for he having affected the sum by an arrestment, the matter became litigious, and no posterior diligence, nor sentence of an inferior court, could exclude him, he using all diligence before the Supreme Court, and not living within the Sheriff's jurisdiction; and the Sheriff's decreet being only in absence, otherwise no process upon any arrestment before the Lords can be secure, but others may anticipate them, by obtaining decreets before inferior courts, which are far sooner obtained.—It was answered, That it was not the arrestment, but the sentence to make furthcoming, that transmitted the right, as being a judicial assignation, and therefore the first decreet is preferable; for, as poinding might have been used upon the Sheriff's precept, notwithstanding of a prior arrestment, and dependence before the Lords, so must the Sheriff's decreet, which is equivalent, have the same effect; and Sir Robert ought to impute it to himself, that took not the shortest way in pursuing before the Sheriff.

The Lords found the first arrestment, pursued before themselves sine mora, and the first citation, preferable to a posterior citation, and arrestment; though obtaining the first decreet, and therefore preferred Sir Robert Montgomery, and would not bring in the parties pari passu, the first arrestment and citation being several months before the other.

Fol. Dic. v. 1. p. 60. Stair, v. 1. p. 488. *** The same case is thus noticed by Dirleton:

In a double poinding at the instance of the Lord Melvil, there being a competition betwixt two creditors of Antonia Brown, daughter and heir to Sir John Brown:

The Lords preferred Skelmorly the first arrester, though Rankin had obtained a decreet to make furthcoming, and had completed his diligence; and alleged, that an arrestment is but an inchoate diligence, and doth not hinder any other creditor to complete, and do more exact diligence by poinding, or by a decreet to make furthcoming, which, in debts, and in nominibus, are equivalent. The reason of the decision was, that Skelmorly had not only arrested, but had intented a pursuit before the Lords, to make furthcoming before Rankin; but processes before the Lords being more tedious, and the pursuer not master of calling, Rankin had taken advantage by obtaining a decreet before the Sheriff in the interim.

Dirleton, No 110. p. 47.