Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Birnie v. Mowat and Crawfurd
Date: 5 July 1673 Case No. No 159.
A first arrester, who had forborn to proceed in diligence, because he had obtained an assignation from the common debtor to the debt arrested, not excluded as in mora, in competition with a posterior arrester, who had done exact diligence.
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John Birnie having arrested in the hands of James Mowat, all sums due by him to Henry Rankine, pursues to make furthcoming: Mowat depones that he was debtor in a certain sum the time of the arrestment, but, that at that time being pursued by Rankine, he did consign certain bonds, by the ordinance of the Lords, for Rankine's payment, and Thomas Crawfurd having gotten assignation from Rankine, hath obtained decreet against him, and taken up the bonds: Whereupon it was alleged for Birnie, That he ought to have sentence upon his arrestment, and the assignation made to Crawford was long after his arrestment.—It was answered for Crawfurd, That he had arrested before Birnie, and raised summons thereupon; but Rankine having assigned him to the debt and Mowat's bonds, he found no necessity to insist for a sentence; but now he produceth the first arrestment and summons, and thereupon craves sentence; which will prefer him to Birnie the second arrester.—It was replied for Birnie, That albert Crawfurd had the first arrestment and summons, yet he hath done greater diligence, having insisted upon his summons, and made litiscontestation, and the cause being now concluded, and advising, he ought to be preferred, or at least to come in pari passu with Crawfurd who had not insisted.
The Lords preferred Crawfurd, as having the first arrestment, and a process, whereupon sentence might now be pronounced.
July 19. 1673. In the competition betwixt John Birnie and Thomas Crawfurd, decided the 5th day of July instant, the Lords found, that Thomas Crawfurd having the first arrestment and summons was preferable, albeit Birnie, the second arrester, was now ready to get sentence, and that the first arrester did not insist to get the first sentence, seeing he had gotten assignation from his debtor, and thereupon had obtained payment; and now having produced his summons, it was objected for Birnie, That upon the summons the first arrester could not have been preferred, because the summons was never continued, and he had done ultimate, diligence.—It was answered, That Crawfurd having obtained assignation and payment, could not insist for further diligence, which therefore must supply as if he had done diligence, seeing it was without collusion; for if the debtor had not voluntarily paid, he would have insisted in diligence.
The Lords preferred Crawfurd as the first arrester, seeing there was no double poinding to put him in mala fide, by knowing of Birnie's arrestment.
Fol. Dic. v. 1. p. 60. Stair, v. 2. p. 203. and 217.
