Subject_1 ARRESTMENT. Subject_2 Breach of Arrestment.
Alexander Grant v. John Hill
Date: 27 February 1792 Case No. No 122.
Found, that no action on the statute 1581. c. 18. liessor breach of arrestment, ultra valorem.
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Grant being a creditor of Alexander Rodger, to whom Hill succeeded as tenant in a farm, used arrestment against Hill, of a hay-stack which Rodger had left on the ground. Hill notwithstanding having allowed the hay to be carried off, Grant raised against him an action on the statute of 1581, concluding, in his libel, for payment of his whole debt, and for the farther application of the statute; the debt amounting to upwards of L. 700, and the value of the hay being L. 30.
Grant having obtained decree in absence, Hill brought it under review in a process of suspension, on various grounds, such as, that he was not the custodier of the hay; but what chiefly occupied the attention of the Court was the objection, that at all events Hill could not be liable ultra valorem of the subject arrested.
The charger insisted on the authority of the following words of Lord Stair, with respect to breakers of arrestment, “That the party injured shall be first paid of his debts and damages, for which he shall have ready execution against the injurer,” b. 1. tit. 9. § 29. To which the suspender opposed a passage of Mr Erskine, who, speaking of an arrestee acting in contempt of the diligence, says, ‘He may be condemned to pay the whole debt a second time to the arrester,’ by which the debt originally due by himself appears to be meant, b. 3. tit. 6. § 14.
The Lord Ordinary at first pronounced this interlocutor: ‘Finds, That by the law of Scotland, a person who commits breach, of arrestment, does thereby subject himself in payment of the whole debt contained in the decree or horning on which the arrestment was used, although the value of the subject arrested be much less; and that the law, as to this particular, is not more severe, or less reasonably so, than in cases of escape from prison.’ But his Lordship afterwards took the cause to report on informations.
The Court were clearly of opinion, That by a just interpretation of the statute, the contravener could be liable no farther than in valorem; and it was observed, that not only Lord Stair, but all the writers, not excepting Mr Erskine, had expressed themselves somewhat inaccurately on this subject.
It was farther observed, that there was an obvious distinction between a case of this kind, and that of escape from prison; for in the one the amount of the loss resulting to the creditor may be easily known; but with regard to the other, it might be impossible to tell what exertions in the debtor squalor carceris could produce.
The Lords found, That no action lay on the statute ultra valorem.
Reporter, Dreghorn.Act. Cullen, J. Grant.Alt. Dean of Faculty, Bailie.Clerk, Menzies.
Fol. Dic. v. 3. p. 45. Fac. Col. No 209. p. 439.
