Arrestment upon a debt in diem. - Upon a dependence.
Competition betwixt Sir James Elphinston and the other Creditors of Strichan
Date: 19 July 1706 Case No. No 51.
Found incompetent to use arrestment upon a summons, not yet executed.
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In the competition betwixt the Creditors of Fraser of Strichan, who all raised summonses upon the passive titles against Thomas and Alexander Frasers his younger children, and thereupon arrested in the hands of the Earl of Murray his debtor, and thereafter obtained decreets of constitution; the Lords found, that a libelled and signed summons before it was executed, did not make a depending action; and therefore did not sustain arrestments raised and executed thereon.
Albeit it was alleged, That though an action is not said to be depending before an Ordinary till the libel be executed, tabled and called; and a summons till it be executed doth not render a matter litigious, or interrupt prescription; yet a signed libelled summons is an inchoate action, and was also held to be a dependence whereupon arrestment might be used. For vouching whereof, a declaration subscribed by thirty-five writers was produced, testifying that they were in use to raise letters of arrestment upon a libelled signed summons though not executed; and credendum artifici in sua arte.
In respect it was answered, That the declaration of the gathered hands is not to be regarded, most of them being young writers, and the old experienced masters of stile declare that the practice of raising inhibitions or arrestments upon unexecuted summonses is contrary to sense, law, and stile; the unwarrantableness whereof doth appear from these words in the bill and letters; as the summons duly executed bears. And whatever might be said for the raising of letters of arrestments before execution of the summons, the anterior executing of the arrestment cannot be accounted for. As though a general charge and summons on the passive titles be ordinarily raised together, the summons is never executed before the general charge.
Fol. Dic. v. 1. p. 540. Forbes, p. 128.*** Fountainhall reports this case:
1706. July 30.—In a competition betwixt Sir James Elphingston of Logie, and some others, the Creditors of Fraser of Strichen, Sir James's arrestment was laid on after the summons was executed, and so on a clear dependence; the rest were indeed after the date of the summons, but prior to its being executed, and so was alleged to be null, seeing it could not be called on a dependence, which is only by a citation. Answered, Though this seems preposterous, yet it is every day practised, and grown up to a fixed custom, which is sufficient to sustain it quoad bygones, being communis error, else many rights may be branded. The Lords thought, if it had been the common debtor quarrelling this, it might have been sustained; but this being with a creditor who has used a more legal and formal diligence, they preferred Sir James Elphinston's arrestment, without entering on the trial what had been the general custom in this case, as had been urged by some.
