Subject_1 ARRESTMENT. Subject_2 Nature and Effect of Arrestment.
Earl of Aberdeen v. The other Creditors of Scot of Blair
Date: 22 December 1738 Case No. No 101.
Arrestment found not to fall by the death of the person in whose hands it is laid.
Click here to view a pdf copy of this documet : PDF Copy
The Lords, after a hearing in presence, found, That an arrestment does not fall by the death of the person in whose hands it was laid, but may be made effectual against his heir by a furthcoming, where the subject is in medio; and therefore the subject in this case being in medio, preferred the Earl's arrestment laid in the hands of the defunct, to an arrestment used by his competitors against the heir.
This was new, and till it shall be followed by another judgment, cannot be called a settled point.
Fol. Dic. v. 1. p. 58. Kilkerran, (Arrestment.) No 1. p. 35.*** C. Home reports this case more at large thus:
The Earl being creditor to Scot of Blair, used arrestment in the hands of William Blair his son, and thereupon brought a furthcoming against him, in which some procedure was had; thereafter, William died, who being succeeded by Hamilton Blair his brother, the Earl insisted in a transference against him; in which compearance was made for the creditors of Mr Scot, who produced an arrestment used for them, in the hands of Hamilton Blair, after he succeeded to his brother; and objected, That the Earl's arrestment perished by the death of William; so that no decreet of furthcoming could now follow thereon.
Answered for the Earl: There is no, other legal method known by which a moveable debt can be taken in execution of a decreet, or applied in payment of a creditor, but by an arrestment and process of furthcoming founded thereon; and, if an arrestment did import no more but a personal prohibition upon the debtor, it is not easily conceived how the personal prohibition, while it is not contemned, should establish a right in the arrester. It is certain, an inhibition, which is but a personal prohibition, gives no action to the inhibitor, while it is not counteracted; consequently, an arrestment is not a simple prohibition upon the party, in whose hands it is used, to pay; but it must further give some right to the arrester, which is the foundation of a furthcoming. With respect to the particular effects whereof, it was observed, That, as an arrestment of a debt (which is the subject of the present question,) gives the arrester an action for payment; so it is equally certain, that a creditor cannot attain that end, without the intervention thereof: Hence it would seem to follow, That the arrestment is not a simple prohibition, which may be the. foundation of a reduction, if it is contemned, but that it gives a right, since there is no instance in law where a petitory action is competent, but where there is a right upon which it is founded. 2do, It is equally established, an arrestment gives a preferable right upon the debt arrested by its priority, which is inconsistent with the supposition that it is only a personal prohibition, and establishes no right in the arrester: A personal prohibition, while it is submitted to, can be no stronger than another personal prohibition made by the same authority at any after period; e. g. An inhibition used to-day, and one used ten years hence, if the debtor in the mean time neither sells his lands nor incumbers them, will have the same effect against an alienation made after both. This demonstrates that an arrestment, which, from the moment it is laid on, gives an action, and a preference, is not a simple personal prohibition, but establishes a right in the arrester. But, 3tio, What puts the point beyond doubt, is, That, suppose a debt be assigned, and the assignation not intimated, a creditor of the cedent's arresting, will be preferred to the assignee, afterwards intimating his assignation. Now, if the arrestment was but a prohibition, What colour could be assigned for this preference? 4to, It is upon the same principles, That, if the debtor, for payment of whose debt the arrestment was used, happen to die, and another creditor of his should confirm the debt as executor-creditor, whereby, if the arrestment were not in the case, he would denude the hæreditas jacens, and establish the right in his person as effectually as if the debt had been assigned, and intimated in the defunct's lifetime; yet the arrester is preferable, which it is impossible can be supported, if an arrestment were but a personal prohibition; for the confirmation is no contempt, 'tis no deed, neither of the principal debtor, nor of him in whose hands the arrestment was laid; 'tis but a step of diligence allowed by the law to the co-creditor; but, when an arrestment is considered as giving right and a preference, it follows, that the after-diligence of the executor-creditor cannot exclude it. And, if this is the case, That an arrestment creates a right in the arrester, 'tis not easy to be conceived upon what principles this right, and the action thence arising, should become void by the death of the defender. 'Tis an established rule, That penal actions do not transmit, unless after litiscontestation; but 'tis equally established. That an action rei persecutoria, is as competent against the heir as against his predecessor, and an action of furthcoming is in no sense penal.
Replied for the creditors of Mr Scot, The doctrine, that an arrestment falls by the death of the person in whose hands it is used, is a point clearly established by all our lawyers; particularly Lord Stair, lib 3. tit. 1. lays it down as a principle, “That arrestment being a personal prohibition, used against him in whose hands the arrestment was made, if he die, it is not extended to his successors; but they may dispose of the goods or sums arrested, unless it be renewed in their hands in the same manner as an inhibition, which is also a legal prohibition extending to heritable rights, as arrestment doth to moveables; but, though the debtor, whose goods or sums were arrested, die, the arrestment ceaseth not, &c” Where the learned author justly distinguishes betwixt the death of the common debtor; and the death of the person in whose hands the arrestment was used, the arrestment does not perish by the death of the one, because it is not directed against him, but against the other, who is inhibited to pay what is in his hands, until the arrester be satisfied; and so far it agrees with an inhibition, that it is a personal prohibition, but it differs in this, that the effect thereof does not cease by the death of the common debtor; a distinction which seems to have been established the 20th of Jan. 1681, Riddell, No 113. p. 783. Both of them are only personal diligences, but neither gives properly a right to the subjects belonging to the common debtors. Heritages are only carried by adjudication, and inhibition is calculated solely for preventing alienation: in the same manner, arrestment is allowed to prevent the common debtor from running off with his effects, before they can be decerned to belong to his creditors; so that the furthcoming is nothing else but an adjudication in mobilibus, and the arrestment, the interim remedy, answering the end in moveables, that an inhibition does in heritage; nor is there any reason for giving it a stronger effect than what is allowed to the other. This doctrine is likewise laid down by several other lawyers, and not a little confirmed from this consideration, That it does not appear ever the point was so much as debated. As to the argument urged for the Earl, That an arrestment must be something else than a personal prohibition; it was answered, A second arrester is preferable to the first, if he obtain the first decreet of furthcoming, which is incompatible with the Earl's plea; and, if an arrestment give any right, such as a decreet of adjudication or furthcoming, there is no reason why it should prescribe sooner than forty years: neither is it inconsistent with the notion of an arrestment's being only a personal prohibition, that they are preferred according to their dates; for, suppose one is laid on to-day, and another half a year after, and both arresters are insisting for a decreet of furthcoming, is it not agreeable that, in pari casu, he who used the first diligence should be preferred? And there is this good ground for preferring the first arrester, That it was his diligence which preserved the subject in medio, otherwise the common debtor might have got payment from his debtor during the half year that intervened betwixt the date of the first and second arrestment: it is likewise consistent with this doctrine, that arrestments are preferred conform to their dates in a competition with assignees, according to the dates of the intimations of their assignation; for an assignation to a personal debt being only a personal right, the cedent's debtor is not obliged to know of any private assignation the cedent has made, until it be intimated to him; and therefore, until then, he may bona fide pay the old creditor, who, till the intimation, is considered as the proper creditor. An arrestment has the same effect, namely, to put the common debtor's debtor in mala fide to pay him; but then, that an arrester is preferred to a prior assignee, who only intimates his assignation after the arrestment, seems to have been wisely introduced by our law, to prevent the hazard that there was of antedating such latent deeds. And, lastly, As to the ob-servation, That an arrestment is preferred to an executor-creditor confirming the debt, it was answered, The present question is only, whether it perishes by the death of him in whose hands it was laid on, seeing it is admitted the common debtor's death does not alter the case? for, as he is only called for his interest, the calling his successor is sufficient; and, as the inchoat diligence against the person, in whose hands the arrestment is used, may be thus carried on; the arrester will be preferred to the other creditors of the common debtor, who shall confirm the subject; because that is only a new step of diligence for affecting their debtor's means; and, as his death does not alter the arrester's diligence, the executor-creditors can be in no better case after their debtor's decease, than they would have been in by using a second arrestment, in order to affect their debtor's means, in case he had been alive; for the sums arrested are indeed in bonis defuncti, but affected by a prior arrestment that is not altered by the common debtor's death; whereas, from its nature as a personal prohibition, it perishes with the person in whose hands the arrestment was used, he alone being personally inhibited thereby.
The Lords found, That the arrestment does not die with the person in whole hands it was used, but may be made effectual against his heir by a furthcoming, the subject being in medio.
