Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 ARRESTMENT.
Subject_3 A bill being duly protested for non-payment, found that the registered protest was not a sufficient ground for Arrestment of the drawer's effects, without a depending action; and, in consequence, a posterior Arrestment upon a dependance was preferred.

William Richardson
v.
Martin Fenwick

1772. February 28thand March 3d.

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[Faculty Collection, VI. 28; Dictionary, 678.)

Kaimes. The arrestment founds a jurisdiction on the effects, so as the judge can proceed to adjudge them to the creditors.

Pitfour. The only purpose of an arrestum jurisdictionis fundandæ causa is to create a jurisdiction on the effects. There must be a separate arrestment for the debt. So it was advised by eminent lawyers in the case of Alexander M'Kenzie and The Swedish East India Company.

President. After an arrestum fundandæ gratia, the party must proceed in the common form, and arrest upon the dependance.

Pitfour. As to the second question, an arrestment may proceed upon a clear ground of debt; for the purpose of arrestment is to stop the fraud of the debtor.

Elliock. This applies not to the present case. Here is an accepted bill. No liquid ground of debt against the drawer.

Justice-Clerk. The question is, Whether a bill, duly accepted and protested for not-payment, can be the subject of arrestment against the drawer? The words in the statute are clear in the negative; and there is a reason for the difference between bills not accepted and bills not paid. When acceptance is refused, there is immediate recourse, because the drawer has drawn upon a person who had not his money; but, when a bill is once accepted, there may lie reasons against recourse, and therefore the law refuses summary executorials.

Kaimes. If the drawer has no objection to the negotiation, there is a clear ground of debt.

Coalston. It is only from practice that arrestments are allowed upon liquid grounds of debt, without registration or dependance. If this is allowed, the same ought to be allowed here.

President. Practice is of much consequence. There is no practice authorising arrestment against the drawer when bills are accepted but not paid. After a bill is accepted, the drawer is only subsidiarily liable. In such circumstances a drawer may know nothing of the matter, when his whole effects are locked up at once by arrestment, and his credit interrupted, or perhaps ruined.

Kaimes. All diligence, prohibitory or executorial, implies a mora in the debtor. Nothing of this here.

On the 3d March, 1772, the Lords preferred Martin Fenwick's; adhering to Lord Hailes's interlocutor.

Act. Ilay Campbell. Alt. B. Sinclair.