Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Laird of Grant and Captain Brody v. Jean M'Lellan or Bouden
Date: 15 July 1709
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I reported Grant and Brody against Jean M'Lellan, relict of Bailie Bouden. The Lady Doun being debtor to the Laird of Grant in £1000 sterling by bond, he pursues the Earl of Sutherland, her late husband, for payment, as vitious intromitter with her paraphernalia and other goods, and as being lucratus by the marriage; and, on this dependence, arrests the like sum in the Earl of Murray's hands, owing by him to the Earl of Sutherland, as some bygone inlakes of his lady's jointure; and afterwards obtains a decreet constituting his debt against Sutherland. Mrs Bouden being a creditor of my Lord Sutherland, in 4000 or 5000 merks, by his clear liquid bond, she likewise arrests in Murray's hands, but posterior to Grant's arrestment. The competition arising which of them were to be preferred, it was contended for Captain Brody, the Laird of Grant's assignee, that he had the first arrestment; and though it was on a dependence, yet, before the competition came to be debated, he had obtained a decreet constituting his debt; and his arrestment being a nexus realis affecting the subject, his decreet must be drawn back to the date of the arrestment; and so must prefer him.
Answered for Mrs Bouden,—Though you are the first arrester, and had your debt constituted before the cause came on to be debated; yet my arrestment, being on a clear liquid bond, must be preferable; because my debt, at the moment of laying on the arrestment, habebat paratam executionem, which yours, laid on on a dependance, had not; and the Lords, in parallel cases, had found, that an arrestment laid on for a debt, whereof the term of payment is come, is preferable to a prior arrestment laid on upon a bond, whereof the term of payment was not come; 29th July 1670, Charteris against Neilson; and 17th July 1678, Lord Pitmedden against Paterson; and Stair, in his Institutes, tit. Assignations, extends this, a paritate rationis, to the present case, betwixt an arrestment on a dependance and another on a registrate bond. A case in 1704, betwixt my Lord Prestonhall and Drummond of Megginch was also cited.
The Lords, by a scrimp plurality, preferred the arrestment on the bond to that on the dependance, though prior.
This interlocutor was afterwards altered upon a bill.
