Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Charles Charters v. Cornelius Neilson
Date: 29 July 1670 Case No. No 157.
The last of two arresters preferred, he having parata executio; whereas the other had only arrested in security of a debt of which the term of payment was not come at the time of competition.
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Charles Charters and Cornelius Neilson, both having arrested their debtor's money in the same hand, Cornelius's arrestment was upon the 24th of June, and Charles's arrestment upon the 28th. But Cornelius's arrestment was upon a bond, whereof the term of payment was not come, and the term of payment of Charles his bond was come, both parties having their citation before the bailies of Edinburgh in one day, where Cornelius alleged preference, because his arrestment was prior.—Charles Charters answered, That albeit his arrestment was four days posterior, yet it ought to be preferred, because the term of payment of Cornelius' debt was not come, whereas Charles his term being past, he has paratam executionem, this being ready to be advised by the bailies. Cornelius raises advocation, and the cause being advocate, the same debate was repeated before the Lords, and Cornelius added that now the term of payment of his sum was past, and alleged, That albeit his term were not come, his first arrestment is preferable, though the decreet thereupon could only be to pay after the term were past, and now his term being also past before sentence, there needs no such limitation.—It was answered, That it is not the arrestment that constitutes the right, but the sentence making furthcoming; and though ordinarily the first arrestment is preferred, yet oftimes posterior arrestments are preferred upon more timeous or more orderly diligence; and the diligence done by Charters is done more orderly, because it was after the term; for, if it were sustained, that arrestments made before the term of payment, should be preferred to those made after the term, creditors who have ready execution should be postponed to others whose debts were payable after a liferent of twenty years time; but, as the second arrester may poind his debtor's goods, though arrested formerly by another, so may he crave sentence to make furthcoming to take present effect by poinding, and cannot be excluded by another creditor, upon pretence of a prior arrestment, which cannot receive present execution; and albeit the prior arrester's term be now come, yet he ought not to be preferred, because he procured advocation of the cause, without any just reason, either of incompetency or iniquity, only to procure delay till his term were past; and therefore the cause being now advocate of consent, the sentence must now be of the same manner, as it would have been before the bailies when the cause was advocate, at which time Cornelius's term of payment was not come.
The Lords found, that the unwarrantable delay by the advocation should not prejudge Charters, and that the case should be considered as it was the time that the advocation was raised; and preferred Charles Charters upon his posterior arrestment, in respect the term of payment of his debt was come, to the prior arrestment laid on upon a debt, the term of payment whereof was not come, whereupon citation was used before the term came.
*** The advocates having withdrawn from the house upon the oath prescribed by the regulation, nothing was called until the middle of December.
