Subject_1 ARRESTMENT. Subject_2 Formalities of Arrestment.
A v. B
Date: 7 January 1704 Case No. No 15.
Letters of arrestment and summons of furthcoming, were sent off to be executed together. Notwithstanding the incongruity, this was permitted for the sake of conveniency.
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One having obtained a decreet against his debtor, he thereon raises letters of arrestment, and likewise a summons to make furthcoming, and sends them both to the country to be executed. When the action of furthcoming is called, it is alleged, No process; because it is raised before the arrestment was laid on, and so is filius ante patrem, and a nimious preposterous diligence; seeing by the order of nature the arrestment should precede, and when it is once executed, then the summons of furthcoming may be raised, and no sooner; and it shocks common sense and reason, to raise a libel narrating an arrestment, which is not yet in rerum natura.—Answered, There is nothing more ordinary, being much to the ease and accommodation of the lieges, and has no inconvenience following it. Suppose the parties dwell in Orkney, what an expence and loss of time would that be, first to send the letters of arrestment to lay it on, and when that is returned back to Edinburgh, then to raise the summons of furthcoming to be executed; whereas it is a great advantage to the people to send them both at one time, and first to give the copy of arrestment, and then the next day the execution of the process of furthcoming; even as the citations for the first and second diet are given at one time, and a charge to enter heir, and a summons on the passive titles founded on that charge may be given simul et semel.—Replied, This is a clear inversion of our styles and forms, and may be prejudicial to the lieges; for, put the case; that one follows the regular course of law in arresting first, and then raising his summons to make furthcoming; another creditor, to prevent him, sends both his letters of arrestment and furthcoming together, and causes execute them at one time; this posterior arrester will certainly get the first decreet of furthcoming, and crave preference to the other, though first in cursu diligentiæ; so he who observes form shall thereby lose his cause; and the transgressor, by his precipitation, shall lucrari.——The Lords considered the practice had grown up to near a custom, and might endanger the quarrelling of many diligences if rejected; and that, in such cases, error communis is allowed jus facere quoad præterita, per leg. 3. D. de offic. prætor. and that it might abridge processes, and hold in much unnecessary expence to the people; therefore they sustained the summons of furthcoming, and repelled the No-process: Though some said this might be salved by an act of sederunt for the future; and if adjudication or other legal diligences had followed on such decreets, they were not to be totally annulled, but only restricted quoad the accumulations of annualrents and penalties. By this same rule it may be argued, where one has taken out a summons under the signet, though yet unexecuted against the defender; yet he may take out letters of arrestment and inhibition, and send them all to be executed together, the summons (which is the ground of the other two) being always first executed, and so the arrestment and inhibition will be reputed as laid on upon the dependence, though it is the citation only that makes a depending process; and when the letters for arresting and inhibiting were taken out and signeted, there was then no citation on the summons, and consequently in construction of law no lis pendens; but the conveniency of the subjects weighs down this incongruity.
