An extract found not sufficient for a warrant of arrestment.
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Two creditors contending, which of them should be found to have best right to a sum of money arrested, as pertaining to their common debtor; the one claiming the same by virtue of an arrestment laid upon that sum, before the other party's diligence; and the other party alleging, that that arrestment ought not to be respected, because the principal letters, which should be the warrant to all arrestments, were not produced, seeing there was nothing produced but an extract of the letters of horning out of the Clerk of Register's books, wherein the horning was registered; in the which extract, there was contained a warrant to arrest, and, by virtue of the warrant in the extract, the arrestment was made by the officer, since the letters of horning were registered; and which extract, he alleged, could not be a warrant to any officer, or to any party, whereupon to make arrestment, except the principal letters, bearing that warrant, themselves were shewn.—The Lords found the foresaid extract, albeit purporting a warrant of arrestment, could not be a warrant whereby arrestment could be executed, the principal letters themselves not being shewn; which principal letters, signed and signeted, could only be a ground of arrestment; and, therefore, the said arrestment was not sustained; but the other party was preferred.
Act. Davidson.Alt. Boyd.Clerk, Gibson.
Fol. Dic. v. 2. p. 250. Durie, p. 442.*** Spottiswood reports this case:
Steven Boyd and one Wilson, two of Andrew Kellie's creditors were striving about L. 400, pertaining to Andrew, which of them should be preferred: They had both arrested; but Steven Boyd having lost his principal letters of arrestment, produced only an extract of letters of horning and arrestment, with the principal executions of the arrestment, subscribed by the messenger.—The Lords found, that, albeit the extract would suffice for the horning, yet it was not enough to verify the arrestment.
