Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Ranking of Arrestments.

Captain Brodie
v.
Jean M'Lellan, Relict of James Bowden late Bailie of Edinburgh

Date: 14 June 1710
Case No. No 166.

An arrestment upon a dependence, was preferred to a posterior arrestment upon a registered bond, the dependence being finished by a decree; so that there was parata executio, at the competition.

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In a competition of the creditors of the Earl of Sutherland, who had arrested in the hands of the Earl of Murray, as debtor to him; Captain Brodie claimed preference to Mrs Bowden, because his arrestment was anterior to hers.

Alleged for Mrs Bowden, She must be preferred, because her arrestment, though posterior in date to the Captain's, was laid on by virtue of letters of horning upon the common debtor's registered bond; whereas his arrestment was used upon a simple dependence. And arrestments upon decreets, that afford paratam executionem, are ever preferred to anterior arrestments upon depending actions: As arrestment upon bonds, whereof the terms of payment are past, is preferable to arrestment used upon bonds, currente termino, Lord Pitmedden contra Patersons, No 160. p. 813.; Charters contra Neilson, No 157. p. 811. For albeit arrestment upon a dependence, or for debt before the term of payment, might be effectual against the debtor, to hinder him to dispone the subject arrested, it can never compete with arrestment upon decreets, whereby the debtor's goods might be poinded and taken away, before the event of the constitution of the other debt.

Answered for Captain Brodie, He ought to be preferred; because his first arrestment, though upon a dependence, was a legal and ready execution for his debt, that was constituted by a decreet before the present competition. So that he is not in the case of the Practiques betwixt the Lord Pitmedden and Patersons, and betwixt Charters and Neilson, where prior arresters were postponed; because, at the time of the first competition, their terms of payment were not come; and creditors having paratam executionem for their payment, could not be obliged to stop their diligence, till others come up equal with them, by getting their debts constituted, which perhaps may never be done, through the common debtor's having grounds to exclude it. For Captain Brodie has now as ready execution competent to him for his debt, as Mrs Bowden has for hers: And, cæteris paribus, he is preferable according to the rule prior tempore, potior jure. So 9th February 1704, Drummond of Megginsh contra Lord Prestonhall, and other creditors of Balcaskie, Fount. v. 2. p. 221. voce Cautioner; an arrestment at Megginsh's instance upon a depending process for relief, was sustained preferable to posterior arrestments upon registered bonds; because, before the competition ended, Megginsh had got a decreet upon his dependence.

The Lords preferred Captain Brodie's prior arrestment upon the dependence.

Fol. Dic. v. 1. p. 60. Forbes, p. 408.