Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

The Laird of Udney
v.
Aytoun and Plendergast

Date: 19 July 1673

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In a summons, to make arrested goods forthcoming, at Udney's instance, against the Laird of Aytoun, who was debtor to Plendergast for the price of some lands disponed to him by Plendergast, against whom the Laird of Udney had obtained decreet for a great sum of money:—

It was alleged for Aytoun, That he could not be decerned to make forthcoming, because he was conjunct-cautioner, with Plendergast, for the Lord Mordington, and they were mutually bound to relieve others; and he being distressed, ought to be relieved, or otherways might detain whatsoever sum is due by Plendergast, by way of compensation.

It was replied, That the pursuer having used arrestment long before any distress, he did thereby affect the sums arrested, and his right acquired thereby cannot be taken away by any subsequent distress; seeing, if he had pursued to make forthcoming before the distress, Aytoun could never have defended himself upon a naked obligement of relief.

The Lords did find the allegeance relevant to assoilyie the defender from making forthcoming the sums arrested, seeing he was actually distressed during the dependence, and that the dependence was drawn back to the obligement of relief, which was prior to the arrestment; and so had no occasion to decide in the case, as if there had been no distress. But it is conceived, that unless it were instructed, that the whole bonds wherein they were conjunct-cautioners were satisfied, so that Aytoun could seek no relief, that he could not be decerned to make forthcoming, unless they offered sufficient caution to warrant him against all distress; and even hardly upon that offer, because it is more easy to retain than to pursue upon warrandice.

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