The confirmation by an executor-creditor, compleated before decree of furthcoming be obtained on a prior arrestment, is preferable to the arrestment.
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Hardy assigned to the Treasurer of the Bank, a debt due to him by M'Kenzie of Rosend, in security of a debt he owed the Bank.
Robert Carmichael, another creditor of Hardy's, arrested in the hands of the Treasurer, and pursued a furthcoming; wherein the Treasurer declared that the Bank was noways debtor to Hardy, but was creditor to him in the sum of L. 30: 5s. Sterling per bill, in security whereof he had assigned to them a debt due to him by M'Kenzie of Rosend, which assignation bore this quality, That in case the Bank should recover more than what was due to them, they should be accountable to him for the same; and that no payment was yet recovered: After which the furthcoming lay over.
Meantime the Bank recovered payment of the debt due by Rosend, whereby they became debtors to the heirs of Hardy, now dead, in a balance, whereof the relict of Hardy getting notice, confirmed the same as executrix-creditrix to him, and brought her action against the Bank for payment; whereupon Carmichael wakened his furthcoming, and insisted upon preference upon his arrestment. It was argued for the executrix-creditrix, That the arrestment in the hands of the Bank could carry nothing, because the Bank was not debtor in any sort to Hardy at the date of the arrestment.
But the Lords found no occasion to give any judgment upon that point, having, upon the report, taken up the question upon a point that had not been pleaded for the party, viz. they found, ‘That the confirmation by the executrix-creditrix being compleated before the decree of furthcoming, the executrix-creditrix was preferable; and preferred her accordingly.’
It is likely, that the executrix would also have been preferred upon the above point pleaded for her, had the Lords proceeded on it, agreeably to what is to be seen supra, voce Arrestment, Creditors of Gordon contra Sir Harry Innes, No 51. p. 715. And as to the points upon which the Lords took up the case, the judgment now given was contrary to the former reported decisions, viz. Riddel contra Maxwell, No 34. p. 2790. and No 35. same page, both observed by Harcarse; for which reason, probably, it had not in this case been pleaded by the lawyers for the executrix. Yet the Lords, in a full Bench, were so unanimous that the other party did not reclaim.
