Arrestment upon a debt in diem. - Upon a dependence.
Hall and Galbraith v. Graham
Date: 4 February 1675 Case No. No 47.
The Lords refused an arrestment on a dependence before themselves, the dependence being a reduction of a decree in foro.
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The ship called the Wine-grape, mentioned in the case 17th December 1674, Gordon and Ludquhairn against—. voce Prize, being found by a decreet of the Admiral not to be a prize; and thereafter the said decreet being reduced upon a contentious debate in foro, a bill of suspension was given in, making mention, that the Lords having thought fit, during the dependence, the value of the ship being liquidated, the price thereof should be sequestrated in the complainer's hands, upon a bond to pay the sum therein contained to the captor and his owners, if they should prevail in the reduction foresaid; and that he was charged to pay the said sum, the process being now at a period by the said decreet reductive, at the instance of an assignee; and that he could not pay the same until an arrestment made in his hands, at the instance of the Swedes the former owners of the said ship, should be purged; which arrestment was upon the dependence of a reduction, intented at the stranger's instance, for reducing of the said decreet reductive; it was debated upon the bill, and amongst the Lords, that the said decreet being in foro contradictorio, was of that nature, that it could not be reduced; and it were of a dangerous consequence, that after decreets in foro, the people should not be secure, but upon pretence of the dependence of reductions of the same, that which was found to belong to them by such decreets, should be again liable to arrestment and to questioning; and, upon the other hand, it was considered and alleged, That there being arrestment and warrant for the same upon the dependence, the debtor was not concerned to dispute what the issue of the same may be, but there being de facto an arrestment, the same ought to be purged which could not be in form, but either by loosing the arrestment, or by refusing the bill upon the reason of arrestment; the defender in this reduction finding caution to make furthcoming, if the pursuer should prevail.
The Lords, notwithstanding found, That in respect the matter was already decided by a decreet in foro, that the bill should be refused, notwithstanding of the said arrestment upon the dependence foresaid; which was hard as to the debtor, who could not be formally secured, but in manner foresaid; and likeways hard as to the strangers, seeing by the said deliverance, the Lords did in effect predetermine the reduction now depending; and upon the matter did find, that the pursuer could not have interest to pursue, before the pursuer was heard in the said reduction.
Fol. Dic. v. 1. p. 541. Dirleton, No 237. p. 113.*** Stair reports this case:
The ship called the Wine-grape being brought up by Captain Gordon, was assoilzied by the Admiral; but immediately the privateer raised reduction, and arrested the ship and goods, which were sold to John Hall and George Galbraith, who gave bond for L. 2000 Sterling, to be paid to Ludquhairn, owner of the privateer, if he prevailed in the reduction; there is a charge at the instance of Inchbraco, assignee by Ludquhairn, whereupon John Hall and George Galbraith gave in a bill of suspension. The Lords having ordained the cause to be discussed upon the bill, the suspenders insist upon this reason, that the strangers having raised reduction of the Lords’ decreet against Ludquhairn, containing therein a conclusion for repetition of the value of the ship and loading, there is thereupon an arrestment of the sum charged for, in the suspender's hands, and therefore the letters must be suspended till that be purged. It was answered, That this arrestment being only for arresting all sums in the suspender's hands belonging to Ludquhairn, could be no ground of suspension against Inchbraco his assignee, seeing his assignation was intimated long before the arrestment. It was replied, That the assignation was granted by Ludquhairn, pendente processu, and so was super re litigiosa, viz. the price and value of the ship and loading then in question, et innovata pendente processu sunt nulla. It was duplied, That the process having been determined by a decreet in fora, an assignation during the dependence is effectual, and could only be quarrelable upon the dependence, which ceased by a solemn decreet in foro. It was triplied for the suspenders, That they being but debtors, ought to be fully secured, cannot be without loosing the arrestment, for the strangers not being in this process, no decreet thereupon will be secure against them, being inter alios actum, for they, if they were called, may allege that this bond being the price of the loading, comes in place thereof, et sapit naturam surrogati, but if the loading were extant, and disponed by the privateer, an arrestment upon the reducsion would affect the same, and so it must be the price thereof even against an assignee; for if the Lords’ decreet be reduced, the assignation by the Privateer to the process, and suspenders’ bond would fall in consequence, and the assignee would be obliged to repeat. 2do, The arrestment must be purged by loosing, because it is offered to be proved by the assignee's oath, that the assignation is to the behoof of Ludquhairn, whose sums are arrested, at least is without an onerous cause, and so could not prejudge the strangers. It was quadruplied, That the debtors will be secure, they paying upon the Lords’ sentence, whoever be called; and seeing there is a decreet in foro, if arrestments upon a dependence shall stop the effect of the decreet, and put the assignee to a necessity to find caution, it would render all decreets in foro ineffectual, for a summons of reduction with an arrestment, would be as good as a suspension; and whereas the suspender should find caution, will necessitate the charger to find caution. It was quintuplied, That if the price of the loading be thus carried away from the strangers, though they should reduce, it would be to no purpose, seeing neither the Privateer nor his owners are in that condition, that the strangers will be able to recover their money.
The Lords in consideration of this inconvenience that might befall the strangers, that they would not have ready recovery of their money, allowed them to compear in this process, and to repeat their reasons of reduction, that if they should prevail they might have access to call for the money contained in these bonds; but their procurators, refusing to compear or insist in the reduction, the Lords found that the arrestment against the cedent had no effect against the assignee, whose assignation was intimated before the arrestment, albeit the assignation was granted pendente processu, seeing the process is determined by a decreet in foro; but found that allegiance relevant, that the charge was to the behoof of the cedent, or without an cause onerous, to suspend the letters, ay and while the cedent loosed the arrestment, and found caution.
