Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Lord Roystown v. Brymer
Date: 31 July 1716 Case No. No 168.
Found in conformity with Brodie against M'Lellan, No 166. p. 816.
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The Lord Roystown having become cautioner for the deceased Lord Preston-hall in several bonds, and also for M'Kenzie of Fraserdale, his son, intents action upon his father's bonds of relief against him, upon the passive titles, and also upon his own bonds of relief, and upon the dependence, arrested in the hands of Mr John Paterson; and having obtained decreet pursues a furthcoming, having in the mean time obtained assignation from the common debtor; in which action there was compearance for one Brymer, a creditor of Fraserdale, who contending, that, notwithstanding his arrestment was posterior to the Lord Roystown's, that yet he ought to be preferred:
Because, 1mo, He had paratam executionem upon his debt; whereas the Lord Roystown was but a naked cautioner, without distress or payment. 2do, That the obligation and decreet to relieve him was allenarly ad factum præstandum, and consequently no ground for a poinding; and therefore, that his Lordship could have no decreet of furthcoming, as was found, 9th February 1704, Drummond of Megginsh against the Lord Prestonhall, Fount, v. 2. p. 221. voce Cautioner.
Answered for the Lord Roystown, 1mo, That, though a simple cautioner cannot insist against the common debtor for payment till he himself have paid, or be distressed; yet a cautioner may arrest in order to secure the subject for his own relief, just as well as he may inhibit or adjudge; besides, that an arrestment upon a bond of relief is not in the same case with an arrestment upon a dependence; for where there is only a depending action, it does not appear till decreet, whether there be a ground of debt; but it is otherways in this case, where the claim of being relieved is fixed, and does not want to be ascertained by a posterior sentence. 2do, That an obligation or decreet to relieve is not like an obligation ad factum præstandum, properly speaking, where it does not appear what loss the creditor has by the non-performance of the bond, and so the claim is not liquid, as in the present case it is; besides, that there is a vast difference betwixt a cautioner having an implied action of relief, and a cautioner that hath an express obligation to free, relieve, and skaithless keep; which difference is noticed by the Lord Stair, Inst. page 148. 3tio, That the Lord Roystown having not only an obligation for relief, but a decreet for that effect against Fraserdale, is in the same case (with respect to parata executio) as if he had been distressed, or had paid.
It was further urged for Brymer, That, at this rate, a cautioner might uplift the money of the common debtor, and squander it without applying it for his relief.
Answered for the Lord Roystown, That the same could be done by a cautioner after distress, or a cautioner having assignation to the subject competed for; yet both have a power to uplift the subject arrested or assigned, and to apply the same towards their own relief.
In respect the Lord Roystown's arrestment was prior to Brymer's, and that he had a decreet upon a dependence before the competition, as also an assignation from Fraserdale to the subject arrested; therefore, the Lords preferred the Lord Roystown. (See Cautioner.)
Act, Col. M'Kenzie & Ro. Dundas.Alt.——Clerk, Sir James Justice.
Fol. Dic. v. 1. p. 60. Bruce, No 23. p. 44.
