Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Jean Cameron v. Thomas Boswell
Date: 28 February 1772 Case No. No 174.
In a competition betwixt two arrestments used on the same day, one execution bearing, that the arrestment was laid on between the hours of six and seven; the other execution, that the arrestment was laid on between the hours of seven and eight afternoon; the priority found sufficiently ascertained to decide the preference.
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These parties being severally creditors to Nisbet, used arrestments on the same day, viz. 20th February 1771; Miss Cameron in the hands of Alexander Hart singly, and Mr Boswell in the hands of Hart, and of several other persons as debtors to Nisbet.
Hart brought a multiple-poinding, wherein Miss Cameron claimed a preference upon her execution of arrestment, which bore, that it was laid on between the hours of six and seven, whereas the execution of her competitor's arrestment bore, that all the arrestments at his instance were laid on between the hours of seven and eight afternoon.
Mr Boswell, on the other hand, contended for a pari passu preference; for, that there was not a sufficient interval between the two arrestments to ascertain the priority of Miss Cameron's.
The Lord Ordinary at first preferred Miss Cameron, but afterwards gave this interlocutor:
“December 11. 1771. Finds that there is not a sufficient distance of time mentioned in the executions of arrestments, for showing, with precision, which of the two executions were first laid on, and therefore prefers them pari passu,”&c.
Cameron reclaimed, founding upon the general rule of law, prior tempore potior jure, and the jus quæsitum to the arrester from the moment the arrestment is executed, as appears both by decisions and authorities; Durie, p. 420. 30th January 1629, Davidson, voce Competition; Bankton, B. 3. tit. 1. p. 42.; and Erskine, B. 3. tit. 6. § 9. establishing the general proposition, that the priority is to be the rule, provided the priority, with any degree of certainty, appear; and which, in the case of two executions within the same hour, may be as well ascertained as if they had been in different hours. In the present case, however, there was no occasion to carry the matter so high. For that, as the executions bear that the arrestments were executed in different hours, the one between six and seven, and the other between seven and eight, upon a fair and equal construction of the two, the one must be understood to have been a full hour prior to the other. But, at any rate, if any faith is due to these executions, it must be allowed that the one is prior to the other; and therefore must be preferable.
The doctrine pleaded on the other side would lead to very extraordinary consequences. Suppose one execution bears the arrestment to have been executed between six and seven, another between seven and eight, a third between eight and nine, and so on to the number of six, as might very well have happened in this case, Mr Nisbet having had such a number of creditors in this town; according to the competitor's doctrine, the one between eleven and twelve would be preferred pari passu with the one between ten and eleven; that with the one immediately preceding, and so on through the whole six, till the last should be brought in pari passu with the first, though prior to it by six hours.
Answered: That, in order to entitle an arrestment to any preference on account of priority in point of time, the law necessarily requires, that there shall be such a priority as excludes the chance or probability of any mistake. In the present case, all that necessarily appears ex facie of the arrestment, is a priority of minutes or seconds; but that a priority of minutes, which supposing the executions to have full faith given to them, is all that appears in the present case, does not entitle to any legal preference, is perfectly clear; Stair, b. 4. tit. 35. § 7. Bankton, B. 3. tit. 1. § 42.; Erskine, B. 3. tit. 6. § 18.; the first of these authors delivering it as a fixed point, that three hours must necessarily intervene. But the respondent is unquestionably well founded, in maintaining, that there must at least be a priority of one hour appearing undoubtedly ex facie of the executions; because, if the time is less, it is impossible there can be any certainty. In the case from Durie, Davidson contra Balcanqual, (mentioned above), there was a priority of two full hours appearing upon the face of the arrestment; and there is not a single decision since that time, where the Court have ever found an arrestment preferable, upon a smaller, or even so small, a priority in point of time.
Observed on the Bench: That the three hours space mentioned by Stair is totally arbitrary. In the present case, there is evidence, from the language of the execution, that the one arrestment was prior to the other.—Must hold the execution pro veritate, and give legal effect to the diligence.
‘The Lords preferred Miss Cameron, in terms of the Lord Ordinary's first judgment.’
Act. Rolland.Alt. M'Queen.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 45. Wallace, No 11. p. 26.
