Arrestment an a dependence was loosed on caution. The common debtor afterwards assigned the sum. The assignee preferred to the arrester, only because no decree was extracted on the dependence. If there had, the arrester would have been preferred, notwithstanding the loosing, the sum remaining unpaid.
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John Boyd merchant in Edinburgh, as assignee constituted by the Laird of Wolmet, to a decreet obtained at his instance, against Niddrie, for payment of the sum of 7000 merks, for which he gave bond to umquhile Wolmet for James Reith of Edmonston, his good-brother, as an asythment for the mutilation of the Laird of Wolmet by Edmonston, who cut off Wolmet's left hand. Niddrie suspended on double poinding, called the said John Boyd, Jean Douglas, umquhile Wolmet's relict, and the said James Reith.—It was alleged for Niddrie and the said James Reith, That the decreet did bear the sum not to be payable till there were delivered, a sufficient letter of slains and remission for the mutilation; but the letters of slains now produced is not sufficient, because it did bear only the remission of an accidental mutilation, and this mutilation being of purpose. 2do, It was only subscribed by Wolmet's heir, and not by his wife and their children.—It was answered for the chargers, That there was no necessity of a letter of slains for mutilation, but the remission alone was sufficient. 2do, This sum was granted for asythment to umquhile Wolmet himself in his lifetime, and the decreet mentioned a letter of slains grant by him. 3tio, Any interest his wife or bairns could have, was only for asythment of their damage, which could be none; seeing Wolmet was a landed gentleman, and did not entertain his family by his handy work.——The Lords repelled the reason of suspension; in respect of the answer on the decreet and letters of slains produced, which they found sufficient.—It was also alleged by the said Jean Douglas, That the ought to be preferred to the said John Boyd, because she had arrested the sum long before his assignation.—It is answered for Boyd, The arrestment was upon a dependence and loosed; and there is yet no decreet upon the dependence.—It is answered for Douglas, That the loosing of the arrestment would have freed Niddrie if he had actually paid the sum; but it being yet in his hand, it ought to prefer her as creditor, doing first diligence; especially, seeing Wolmet, the time of the assignatio, was rebel and bankrupt.——The Lords preferred the assignee, in respect there was no decreet extracted upon the dependence; reserving to the arrester, after sentence, to reduce upon the prior diligence as accords, &c.
