Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Ranking of Arrestments.

James Lister
v.
John Ramsay

Date: 25 July 1787
Case No. No 177.

A prior arrester, who entered his claim before a decree of furthcoming was extracted, preferred to a posterior arrester, who brought the process, although the former, after arresting, had not proceeded in his diligence for three years.

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James Lister, being creditor to Lilias Dewar, used arrestment in the hands of one of her debtors in 1785. He immediately after brought an action of furthcoming, which was conjoined with an action of multiplepoinding raised by the arrestee; and he obtained a decreet of preference.

Before this decreet was extracted, a claim was entered for John Ramsay, in virtue of an arrestment which had been used by him three years before. But the Lord Ordinary, ‘on account of the mora on the part of the claimant, of new decerned in the preference.’

In support of this judgment, which was afterwards brought under review of the Court, James Lister

Pleaded: Anciently the only effect of arrestment was to prevent voluntary payments to the debtor himself. In a competition of creditors, it was not the person whose arrestment was first executed, but he who first obtained a decreet of furthcoming, to whom the preference was given: And hence it sometimes happened, that a prior arrester, who had brought his action in the Court of Session was postponed to one, who, having commenced the same action in an inferior court, had, from the shortness of the induciæ there allowed, been able more speedily to complete his diligence. In modern times, it is true, this strictness has been considerably relaxed; but still any unreasonable delay will be fatal to the preference otherwise given to priority in date. A second arrester, therefore, who, without loss of time, has brought his action, and who has obtained a decreet, ought certainly to be preferred to one, who for years has neglected to follow out his diligence in a proper manner. Spottiswood, Harcarse, voce Arsestment; Stair, b. 4. tit. 35. § 6.; Bankton, b. 3. tit. 1. § 43.; Erskine, b. 3. tit. 6. § 18.

Answered: Since the enactment of 1669, limiting the duration of arrestments to five years, it does not appear that any other restraint ought to be imposed on the users of this mode of diligence. At any rate, the preference here awarded seems unsupported by any precedent. Whatever may have been the effect of arrestment in the most ancient periods of our law, it has now, for a long while, been considered, not only to prohibit payments to the debtor, but also to create a certain lien or nexus in favour of the arrester, which nothing but an extracted decreet; of preference obtained by another creditor can effectually disappoint. In the present case, as an action of multiplepoinding had been commenced, to which the first arrester was a party, an extracted decreet in that process would also have been necessary, to put the arrestee in safety to pay to any other person.

‘The Lords altered the interlocutor of the Lord Ordinary, and found the first arrester to be preferable.’

Lord Ordinary, Alva. For John Ramsay, M'Cormick. For James Lister, Patison. Clerk, Orme. Fol. Dic. v. 3. p. 46. Fac. Col. No 343. p. 531.