Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Upon what Debts Arrestment may be Founded.

Mr Robert Blackwood, Merchant in Edinburgh,
v.
Adam Brown, Dean of Guild of Edinburgh

Date: 6 January 1702
Case No. No 20.

A bond of relief, obliging the granter to relieve his cautioner, and retire the creditor's bonds, betwixt and a certain day, being ad factum prestandum only, found no ground for arrestment, even after the day had elapsed.

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Mr Robert Blackwood being cautioner for John Watson in great sums of money, obtains a bond of relief, in these terms, obliging the said Watson to relieve the said Mr Robert, and retire the creditors bonds, betwixt and a certain day.

Mr Robert Blackwood not being relieved, nor his bonds retired, arrests in the hands of Adam Brown, who, in the furthcoming, depones, That he was no ways debtor to Watson; but that, being creditor to him in great sums, Watson dispones certain of his effects for his security and payment.

Blackwood craved a re-examination, and that he might condescend upon these effects, and the debts due to him, and instruct the same, and not be his own judge, both in charge and discharge.

The defender alleged: He was neither bound to have deponed at all, nor is he now obliged to answer any further interrogatories; because the ground of the pursuer's arrestment is no bond for a liquid sum of money or debt, but a bond of relief, which is an obligement for a fact, viz. to relieve him, and retire his bonds; in which he followed the faith of his debtor, whom he ought to distress, but cannot thereupon crave his money to be made furthcoming; for the obligement to relieve, &c. does not afford him any title of intromission; and therefore no decreet of forthcoming can follow. And further, it is a known and ordinary style in bonds of relief, that, for the cautioner's further security, the obligant is bound to pay the sums to his cautioner, that he may relieve himself; which ordinary caution being neglected, the pursuer must hold himself to his bond in the terms he has taken it. -

It was answered: That an obligement to relieve the pursuer, and retire his bonds, implies every thing that may make the relief effectual; and consequently, that his debtor's means may be affected, and made furthcoming. 2do, The defender did already acquiesce, in as far as he deponed in the furthcoming, and cannot now decline to clear his former oath. 3tio, In another process of forthcoming, on the same bond, against Margaret Seaton, the Lords did oblige her to depone in the furthcoming. 4ta, The pursuer doth further liquidate his claim, by condescending and instructing the debts he has paid, in which he is a liquid creditor.

It was replied: The obligement of relief implies no more than the words do express, by which nothing was intended, but to oblige Watson personally. 2do, The defender might have declined to depone at first; and now he declines to lay his business open to the pursuer, who has no interest to require it. 3tio, Margaret Seaton had been holden as confest; and in a suspension craved only to be reponed to her oath; and, though she did offer the same grounds, yet she insisted only ad hunc effectum, to be reponed, in which she prevailed. 4to, It alters not the case, though the pursuer may have paid certain of the sums expressed in the bond of relief, and thereby is become a liquid creditor; seeing his right to these bonds is not the foundation of the arrestment and forthcoming.

The Lords found, a bond to relieve the pursuer, and retire his bonds in the terms above expressed, was no ground for arrestment and furthcoming.

Fol. Dic. v. 1. p. 54. Dalrymple, No 33. p. 41.