Scottish Court of Session Decisions

Lord President—This is a petition for recall of arrestments, and the Lord Ordinary has so far granted the prayer and has loosed the arrestments except to the limited extent of £100. The petitioner has reclaimed against the Lord Ordinary's interlocutor, and contends that the arrestments should be recalled in toto, on the ground that they are wholly incompetent. The question involved is one of some importance and of general application, but I confess that I entertain no doubt of the way in which it is to be solved. The action on the dependence of which the arrestments were used is one of reduction, and of nothing else. It concludes for the reduction of certain documents, and for payment of £100, or of whatever other sum shall be modified as the expenses of the process. It was conceded in the argument that, but for this last conclusion for expenses, the arrestments would be incompetent. The question before us therefore is reduced to this point, Whether in an action on the dependence of which otherwise arrestments could not be used, they are nevertheless made competent by the fact of the conclusion for expenses? I am of opinion that they are not. I think that the case of Weir v. Otto, 8 Macph. 1070, is directly in point, and that the present case goes no further. I am quite unable to see any distinction between the two diligences of inhibition and arrestment on the dependence of an action.

But there are various other authorities which have been referred to, and which are of great importance, because in these cases it was undoubtedly taken for granted that such a diligence as has been used here would have been incompetent. For example, there is the case of Telford's Executor v. Blackwood, 4 Macph. 369, in which the petitioner prayed for recall of arrestments used upon the dependence of an action of count, payment and reckoning. This action concluded for payment by the defenders to the pursuers of the amount that should appear to be due to them, while the pursuers at the same time expressed willingness to pay to the defenders whatever balance, if any, might be found after the count and reckoning to be due by them. With great difficulty the Second Division, when I sat there, held that the arrestment was competent, upon the ground that the conclusion was for payment of a sum of money apart altogether from the separate conclusion for a sum in name of expenses. If the conclusion for expenses had been considered to warrant the arrestment, we should have had no reason to consider the other point. That and a variety of other decisions are not direct authorities, but go greatly to aid the inference we draw from the case of Weir v. Otto.

The only difficulty which has been suggested arises from the consideration that arrestment covers the expenses of process, and in like manner the interest which may accrue on the principal sum from the date of citation. From this it is argued that in its original use it was intended that it should so secure the expenses, and did have this effect. But I think it was a good answer which was made to this argument that expenses and interest are future debts not due at the date of the arrestment on the dependence, and therefore not covered by it. They only afterwards become a part of the debt, as incidents of and outgrowths from it, and are recoverable under the ultimate process of furthcoming. That is a good explanation of the difficulty.

The argument used on both sides upon the words of the statute 1 and 2 Vict. cap. 114, secs. 16 and 17, is not of much avail. The words of these sections give authority to insert in the summons a warrant of arrestment, and describes the summons on the dependence of which, after the insertion of a warrant, effectual arrestment may proceed, as a summons “concluding for payment of money.” It is contended on the one side that this can only be an action of debt concluding for payment of a sum of money; on the other, that a summons in which the only conclusion for payment is for expenses, is in strict language within the section of the Act. But the determination of the construction of these words of the statute brings us back to what we have already been considering. This statute must refer to summonses which conclude for payment of a principal sum of money.

It has neither been established by practice nor by decision that this arrestment is good, and the appeal to the Act of Parliament is equally unavailing. I cannot assent to the view of the Lord Ordinary, and I am of opinion that the arrestment must be recalled in toto.

Lord Deas—I am clearly of the same opinion. All the authorities go in the direction pointed out by your Lordship, and the decisions as to the competency of the diligence of inhibition in actions of a similar nature to the present lead to that result. Apart from these, I should be of the same opinion.

The diligence which the law allows either by arrestment or by inhibition on the dependence of an action is an extraordinary remedy, and being so, it is not to be extended beyond the length to which by practice it has been carried. No instance has been cited where the privilege of that extraordinary remedy has been given in an action which contains conclusions for payment of nothing further than of expenses. All the authorities, so far as they go, are against such a proceeding. An arrestment on the dependence might then be used in every action. The conclusion for expenses is no part of the summons, and it is to be held as merely expressing that which is an incident of the action. I quite agree with your Lordship that the explanations with which we were favoured against the argument which was used by the respondent, that arrestment covers expenses where these are allowed, were perfectly satisfactory.

If I were to construe the statute, I should be of opinion that the conclusion for expenses is no part of the conclusions of the summons as therein referred to. To lead to the opposite result, we should expect first that the practice should support it, and the burden lies on those who maintain

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