Citation in Process of Forthcoming. - In Adjudication. - In Reduction ex capite inhibitionis.
Mr Alexander Nisbet v. -
Date: 5 June 1666 Case No. No 111.
In a process at an assignee's instance for payment, it was found relevant for a prior arrester to appear in the process, and plead his preference without calling the common debtor.
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Mr Alexander Nisbet, as assignee to a sum, pursues the debtor for payment. Compears the arrester, who had arrested it in the debtor's hand for a debt due to him by the cedent, and whereupon he had obtained decreet before the Sheriff of Berwick. It was alleged for the assignee, that the decreet was null, because the principal debtor was not called in the decreet for making furthcoming, or at least, at that time, he lived not within that jurisdiction. It was answered, That albeit the arrester had no more but his naked arrestment, he might compear for his interest, and crave preference to the assignee, whose intimation was posterior. It was answered, He could not be pursued hoc ordine, because he, whose money was arrested, was not yet called, viz. the assignee's cedent, who is the arrester's principal debtor; who, if he were called, might allege, that the debt, whereupon the arrestment proceeded, was satisfied, which was not competent to the assignee, being jus tertii to him.
The Lords found the arrester might compear in this process without calling his debtor; but they found that the assignee might either allege payment in name of his cedent, or, if he craved a time to intimate to his cedent, they would supercede to extract till that time, that the cedent might defend himself.
