Subject_1 ARRESTMENT. Subject_2 Expences of Arrestment.
Innes v. Forbes
Date: 4 January 1740 Case No. No 178.
A party found entitled to retain the encerces of arrestment and furthcoming out of a separate security he held.
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In a competition between Innes as arrester in the hands of Peter Crawford, on a debt due by him to Robert Gordon by a promissory note, and Forbes as indorsee by Robert Gordon to the said promissory note, Innes had formerly been preferred upon his arrestment: and now Forbes having infifted that Innes should therefore assign to him a separate security, which he had from Gordon, in so far as the same, together with the sum recovered by the arrestment, exceeded the debt in which he was creditor; with which Innes was willing to comply, provided he should be allowed retention of the expence of his arrestment and furthcoming out of the sums in said separate security; the Lords found, ‘That Innes should have retention of the sum in said separate security, to the extent of the expences of his arrestment and furthcoming.’
N. B. Where the ground of the arrestment is a bond containing penalty, the penalty is as much the ground of the arrestment as is the principal and annualrents; and therefore the sum recovered upon the furthcoming will only extinguish so much of the principal and annualrents as comes free to the furthcomer, after deduction of his expence. But where the ground of the arrestment is a bill, then, as the expences in the furthcoming were not the ground of the arrestment, the sum recovered on the furthcoming will wholly apply to extinguish the principal and annualrents of the bill, and the expences be only acclaimable by personal action against the common debtor, with which neverthless it was very consistent to allow the retention in the present case.
Fol. Dic. v. 3. p. 46. Kilkerran, (Arrestment.) No 7. p. 39.
