Subject_1 ARRESTMENT. Subject_2 Upon what Debts Arrestment may be Founded.
Ludovick Brodie, Writer to the Signet, v. George Dunbar, Merchant in Edinburgh
Date: 23 June 1724 Case No. No 23.
Found directly contrary to Blackburn against Brown, No 20. p. 689.
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Mr Brodie being bound as co-principal with Sir James Sinclair of Dunbeath, and John Sinclair of Ulbster, in the year 1719, to Bruce of Clackmannan, they granted him a bond of relief, ‘Obliging themselves to relieve him betwixt and the term of Lammas thereafter, and for that effect to pay the money to the creditor betwixt and the said term, and to retire the bond, or deliver to him a sufficient discharge of it.’ And, by another clause in the bond, ‘Mr Brodie had power, in case of their not paying or relieving him, as said is, to raise and execute all manner of diligence personal or real against them, even though he should not happen to be distressed for payment.’ This bond was registrate by MR Brodie, and thereupon he raised and executed letters of horning, and, upon the 22d of July 1723, he arrested in the hands of one Dempster, who was debtor to Sir James.
George Dunbar being creditor to Sir James, in bonds of borrowed money, did registrate. the same, and raised letters of horning, in virtue of which he likewise arrested in Dempster's hands upon the 14th of August, year foresaid.
In an action of furthcoming, preference was craved for Mr Brodie, as having the prior arrestment.
On the other hand, it was pleaded for Mr Dunbar, That though his arrestment was posterior, yet he ought to be preferred, in respect that the ground of it was a liquid debt, for which he had ready execution by poinding or otherwise, whereas the ground of Mr Brodie's arrestment was a bond of relief ad factum præstandum, and not for any liquid sum; so that he could have no parata executio, since both his debt and arrestment were in effect conditional, and remained so, till either he was distressed or had made payment, neither of which had happened: And though, by a clause in the bond, he was allowed to use all manner of diligence after the term of relief, whether he was distressed or not, yet that clause was only exegetic of the former, and gave him nothing new ; and if the bond must be considered as a simple bond of relief, he could only charge Sir James with horning, and take him with caption, till he was relieved, but could not proceed to poind his effects, for which the letters of horning gave no warrant.
Answered for Mr Brodie, That the ground of his arrestment was equally liquid, since his bond of relief did liquidate the sum to be paid, and Sir James was thereby obliged to relive him betwixt and a certain day ; which, he contended, was as strong an obligement, and should have the same effect, as if Sir James had bound himself to pay the sum, in the bond to Clackmannan, to him the cautioner, in order to operate his relief betwixt and that time; for this was no more than a clause of stile, and is implied in the nature of the thing, otherwise bonds of relief might be easily rendered ineffectual: And a bond of relief, upon which arrestment has followed, is as habile a ground for a decreet of forthcoming as any other liquid debt.
The Lords preferred the first arrester.
For Brodie, Pat. Grant.Alt. Jo. Sinclair.Clerk, Dalrymple.
Fol. Dic. v. 3. p. 39. Edgar, p. 54.
