Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Captain John Brodie v. Mr Patrick Campbell of Munzie
Date: 26 January 1715 Case No. No 45.
The arrears of an officer's half-pay found to be arrestable; in the hands of the paymaster, who was held to be factor, not of the Colonel as an individual, but for the behoof of the officers.
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Captain Brodie having commenced a process against Lieutenant-Colonel Hay, of the Earl of Tullibarden's regiment; during the dependency, arrests in Munzie (who had been paymaster to the regiment while it stood) his hands, some arrears due to Hay; and after decreet obtained against the Lieutenant-Colonel, having insited in a forthcoming against Munzie: The question came to be discust, How far an arrestment in the hands of the paymaster could affect money belonging to the officers?
It was excepted for Munzie, That, by the Roman law, such an arrestment was so far from being supported, that, by Nov. 88. C. 1. the user thereof was punishable. And that pay cannot be arrested, appears further from 1. 4, 6. de execut. rei jud. where it is said, That even ob rem judicatam stipendia retineri non possunt, except in subsidium; & si aliis rationibus exequi nequeat: And much less, where the arrestment is only on a dependence. Nay, according to L. 5. 6. Qu. res pig. oblig. poss. athletarum prœmia pignori dari non possunt; much less then can stipendia militum, which only in subsidium etiam ob rem judicatam capiuntur. And this is also supported by our actse of sederunt in annis 1613 and 1626, whereby pensions and fees of the king's public ministry and others, are declared not arrestable: Specially considering, their pay is to be looked upon as alimentary. 2do, By King William's regulations 1695, founded on an act of Parliament, 6to & 7mo Gulielmi, cap. 7. the pay of the army seems not arrestable, for there, § 9. it is statute, “That all agents, clerks, &c. for, or on the account of, any Colonel, or commanding Officer, &c. shall, before they receive any pay, give bond to his Majesty, with two sufficient securities:” The condition of which bond is, to answer the sums so by them to be received, &c. And, § 10. it is enacted, “That no Colonel, officer, or agent, shall, in accounts by them stated, be allowed any sums of money, upon pretence that they had been by them advanced or lent to any officer or soldier thereafter:” So that to imagine agents liable to arrestments, and at the same time obliged to fulfil the conditions of the bonds given, is to suppose manifest contradictions.
Replied for the pursuer, That the question is not here anent subsistence, which is indeed necessary for the public service, but anent arrears, which is a subject over and above what is necessary for subsisting in the service, and is arrestable; specially when the fund is still due after the regiment is broken, and the Lieutenant-Colonel out of the service; so that there is no occasion of detaining it on account of the necessity of the service. Which distinction is well established in parallel instances, by the Lord Stair's institutions, lib. 3. tit. 1. § 37. where he says, “That it is a competent exception against arrestments, that the thing arrested is a proper aliment, and not exceeding the measure of aliments; and the fee of a servant was not found arrestable, in so far as it was necessary for the service he was in; but only for the superplus, more than was necessary for his aliment in such a service. July 9. 1668. Boag contra Davidson, preceptor of Heriot's Hospital.”* And as to the act of Parliament, and regulations above-mentioned, though they can have no influence on this decision, being English acts before the union; yet even they seem more to favour the pursuer; for there it is expressly appointed, That the factors for regiments shall issue forth their payments to the officers, conform to their respective proportions, but no prohibition of legal diligence against arrears.
The Lords found the sums in question were arrestable.
* Stair, v. 1. p. 550. voce Personal and Transmissible.
Another point having fallen to be determined, viz. Whether Munzie was factor for the Colonel only, or both for him and the officers ? As to this, it was excepted for the defender, That he opponed his factory, in the terms whereof he is only liable, which is only from the Colonel, and to whom alone he is declared accountable; and, by the foresaid instructions by King William, the factor is only to issue out the money conform to his Majesty's directions; so that where no such directions were, it behoved to be by the Colonel, who had the only power to receive, and was accountable to his Majesty for the money of his regiment. And, though other officers also contributed for the agent's pay, yet such an office was absolutely necessary for management of the regiment's affairs.
Replied for the pursuer, That Munzie's discharge from the Lieutenant-Colonel was opponed, which bears in terminis, that he hath made full and complete payment of what arrears he had in his hands, notwithstanding of arrestments laid in his hands by the pursuers. 2do, Though, out of respect to Colonels, they have the nomination of the factor, yet still, by the nature of the trust, he was factor also for the regiment, and liable to count to every officer for his pay, as well as to the Colonel for his. 3tio, The defender owned this by clearing with the several officers, without noticing the Colonel, or receiving his warrant to pay any of them. 4to, There is a decision of the case in terminis, 20th February 1712,* James Napier contra George Grant, paymaster of Grant's regiment; where the whole above defences were proponed and repelled.
The Lords found, That the defender was factor for the behoof of the officers the time of the arrestment, and therefore that their money was then arrestable in his hands.
Act. Boswell.Alt. Se.Clerk, Mackenzie.
Bruce, Nos 44. 45. p. 57.
