Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Wightman v. Seton and Cockburn
Date: 15 January 1697 Case No. No 164.
One party arrested two days before another. Both obtained decree on the same day. The goods were delivered to the second, and he caused poind in his own hands. The first, notwithstanding, preferred.
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Crocerig reported Wightman, merchant in Edinburgh, against Alexander Seton, collector at Prestonpans, and Cockburn; being a competition between two arresters of some goods in Seton's hands, belonging to Gray their common debtor. Wightman's arrestment was two days prior to Cockburn's. Their decreets for making furthcoming were both in one day. Cockburn charges Seton to deliver them up before Wightman charges. Seton obeys the charge, without suspending on double poinding. Cockburn, for his further security, causes likewise poind and apprise the goods after they are in his own possession, and upon all this diligence he craves to be preferred.—Wightman contended, he laid on the first arrestment, which was a nexus realis, and had obtained a decreet as soon as the other, and not being in mora thereafter, this transmitted the property of the goods to him. And for Cockburn's diligence, it was affected and collusive, Seton shewing himself evidently partial in delivering up the goods, being put in mala fide by Wightman's arrestment and decreet. Neither does it import, that he was a naked custos, the goods being only in his hand as collector, and not as debtor; for he could not gratify one creditor to the prejudice of the other. And though Durie, p. 760. observes, 11th March 1635, Dick contra Spence, voce Competition, that a party in whose hands arrestment was laid on, might suffer another to poind the goods, yet there was no decreet of furthcoming in that case; and if there be any partiality or collusion, the Lords use to reject such diligences, 20th January 1672, Bell contra Fleeming, Stair, v. 2. p. 52. voce Proof.——The Lords found, Wightman being the first arrester, it made such an onus reale on the goods, he not having been negligent, that it gave him preference to Cockburn, notwithstanding he had the first possession of the goods.
Fol. Dic. v. 1. p. 61. Fountainhall, v. 1. p. 755.
