An arrestment executed betwixt 12 and 1 o’clock in the morning, was preferred to one executed betwixt 5 and 6 of the same morning.
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The said parties being both creditors to the corporation of taylors in Cannongate, did severally arrest on the 16th day of May, in the hands of tenants, in order to affect the current term; and the execution of Grant's arrestment bearing to be between five and six of the morning of said day, and the execution of Jones's arrestment bearing to have been at the several dwelling-house's between 12 o’clock and 1 in the morning of said day, it was objected to Jones's arrestment, that being at midnight, it was irregular, and ought therefore not to be sustained, otherways all diligence whatever might be executed at such improper hours, which might be of bad consequence, and attended with much inconvenience: That further when the law allows execution at the dwelling-house, in the nature of the thing, it supposes it to be done at a time when the executor may lawfully demand access, which a messenger cannot lawfully do at midnight. And some able judges were of that opinion.
Nevertheless, as it was said, there was no law against executing arrestments at any time of the night, though the quesion put was only, whether the arresters should be admitted pari passu? Jones was preferred on his arrestment by the narrow majority of seven to six.
Fol. Dic. v. 3. p. 189. Kilkerran, (Arrestment) No 15. p. 43.*** D. Falconer reports the same case.
William Jones head collector of the stamp-duties in Scotland, being a creditor of the incorporation of taylors in the Canongate, arrested in the hands of their tenants, betwixt the hours of twelve and one in the morning, the 16th day of May, and Thomas Grant merchant in Edinburgh, arrested between five and six that same morning.
A competition arose between them, in which it was pleaded for Mr Jones, that the first arrestment ought to be preferred, there being no law to forbid arrestments at any hour; that it was as probable people would be in bed betwixt five and six, as betwixt twelve and one; and here it was not pretended the debtor had paid the money for want of being certiorate, but it was still in medio.
Pleaded for Mr Grant; That the middle of the night was an improper hour for diligence of any kind, when people were not obliged to open their doors; that this haste was catching, which ought not to be encouraged, but the subsequent arrester at least brought in pari passu.
The Lords, 12th February, preferred Jones. On a reclaiming bill, they refused it, and adhered.
For Jones, Hay.For Grant, Geddes.Reporter, Lord Murkle.Clerk, Gibson.
D. Falconer, v. 1. p. 85.
