Scottish Court of Session Decisions

Subject_1 PART I.

ARRESTMENT.

James Neil, Writer in Air,
v.
John Brown, Merchant in Glasgow, Trustee for John and Abraham Clegg of Manchester, and Thomas and George Maltby of London

Date: 26 February 1773
Case No. No. 3.

An arrestment, debiti servandi causa, upon an admiral precept, without previous citation of the common debtor, in a cause not maritime, found irregular, and also not founded in the practice of the admiral-court.

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Neil being creditor to William Harris, merchant in Air, by an accepted bill, caused arrest, on the 17th October 1768, in virtue of a horning, in the hands of Mary White, as debtor to Harris, and afterward obtained decree of forthcoming against her, who suspended, and brought a multiple-poinding, on the ground of double distress.

Brown produced an interest, which consisted of a decree of forthcoming, obtained, at his instance, before the high-court of admiralty, against the said Mary White, and Harris, the common debtor, founded upon two small bills, drawn by John and Abraham Clegg, and Thomas and George Maltby, upon Harris, payable to Brown, but not accepted by Harris.

Neil objected to Brown's interest, on this medium, that his arrestment was funditus void and null, as being filius ante patrem, being an arrestment without a dependence; for, until the common debtor was cited, there could be no depending action; and as, in this case, the common debtor was not cited by Brown, till long after his arrestment on the admiral-precept, and after the arrestment, used by Neil, Brown's arrestment was good for nothing, and his fell to be preferred.

The Lord Stonefield Ordinary sustained the objection by several interlocutors:

“In respect the arrestment used by Brown was executed before a dependence was created by citation of the common debtor, and that Neil's arrestment was regularly executed, previous to the citation at Brown's instance.”

Against these judgments, Brown having reclaimed, the court, upon advising the petition, with answers, ordered memorials on the cause, and, particularly, as to the practice of the admiral-court, and how far such arrestments as Brown's had been sustained.

Memorials having been accordingly given in,

“The Lords, in respect the arrestment used by Brown was not in a maritime cause, therefore adhered to the Lord Ordinary's interlocutor.” And again adhered, on a reclaiming petition and answers.

Act. M'Laurin. Alt. Ilay Campbell, J. Boswell, Cullen. Clerk, Tait. Fac. Coll. No. 64. p. 155.