Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Wallace v. Scot
1583.
January. Case No. No 151.
The first-arrester, with the second decree of furthcoming, preferable to to the second arrester with the first decree.
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There were certain sums of money that pertained to Mr John Majorbanks advocate, arrested in the hands of one Mungo Tenant, be two sundry creditors. The first quha had made the first arrestment were the banns of ane Scot, mariner in Leith; the second arrestment was made by the spouse of umquhile John Wallace writer. The first arrester intented action against the said Mr John; and the second arrester has obtained decreet against the said Mr John, sua the person in whose hand the silver was having complained to the Lords upon double pursuit, consigned the silver into the clerk's hands, unto the time it was found be the Lords who had maist right to uptake the samen, be reason of the arrestments and decreets obtained thereupon.—It was alleged for the bairns of Scot, That they had first arrested, and upon the samen obtained decreet, and sua in respect of the priority of the arrestment, they ought to uplist the money, et qui prior tempore potior de jure.—It was alleged by the wife of umquhile John Wallace, That she ought to uplift the money; because, that notwithstanding of the bairns of Scot had made the first arrestment, yet she had obtained the first decreet, et sic prior tempore respectu rei indicate.—To this was answered, That albeit she had obtained the first decreet, yet the second decreet obtained by Scot, habuit causam a priori, and fra the first arrestment, and sua ought to be drawn back to the first arrestment.———The matter being reasoned be report among the Lords, some were of opinion, That the first arrestment with the second decreet ought to have place, et qui prior tempore prior de jure. Others were of the opinion, That the second arrestment with the first decreet, propter auctoritatem rei judicatæ, and priority of the samen ought to have place. Some others were of opinion, That in respect of both decreets and arrestments, the sum should be divided equally amongst the parties, et sic domini in triplici habuerunt opinione.——The Lords for the maist part found be interlocutor, That the first arrestment with the second decreet, should have place quia habebat causam a priori. Vid. l. decreto. l. qui priores in pignore habeantur.
