Scottish Court of Session Decisions

Lord Young—I am not generally in favour of arrestments on the dependence of an action, because they give a great advantage to one of the parties without a corresponding advantage to the other, and we know that not unfrequently they are used oppressively. The threat of an action with diligence to follow on the dependence is sometimes used as a means of concussing an opponent. Nevertheless, the law allows a pursuer, without making out even a prima facie case, to make use of this diligence, resort being allowed to the Court to prevent oppression or hardship.

This application was made to the Lord Ordinary when only the summons was before him, the defences not having yet been lodged, and on the statement of the case in this petition and answers his Lordship thought proper to loose the arrestments on the funds in bank, and to order the arrestments on the trust-funds to be loosed on caution for £1200 being found.

The pursuer of the action has stated at the bar that he is prepared to acquiesce in the arrestment on the trust-funds being restricted to £1200. I think that a reasonable proceeding, and propose that we should restrict them accordingly.

As the case developes itself in the Outer House, the Lord Ordinary may be applied to by incidental motion in the cause to recal even this restricted arrestment, or to restrict it still further. What will then be done depends on the merits of the case as disclosed at a later stage. I think, in the present position of matters, that a restriction to £1200 is reasonable.

Lord Craighill concurred.

Lord Rutherfurd Clark—I am of the same opinion. There is a matter here, however, with respect to the Personal Diligence Act 1838, which, with deference, I consider of importance, although it has not been raised at the bar. That is in regard to the form of the present application. I was always under the idea that an application to recal arrestments under the Personal Diligence Act was only competently presented after defences were lodged, so that the Lord Ordinary might have an opportunity of judging of the merits of the cause. The power to recal is given by the 20th section of the Act 1 and 2 Vict. cap. 114, which provides that “it shall be competent to the Lord Ordinary in the Court of Session before whom any summons containing warrant of arrestment shall be enrolled as Judge therein, or before whom any action on the dependence whereof letters of arrestment have been executed has been or shall be enrolled as Judge therein … to recal or to restrict such arrestments on caution or without caution.” Now, what is the meaning of “enrolling” a summons or action before a Lord Ordinary? I do not think that a case can be “enrolled” in the meaning of this statute before defences are lodged. At the time that this Act was passed the first enrolment was in the printed roll, and no case could be in the printed roll until defences were lodged. This section contemplates that before the Lord Ordinary shall proceed to consider such an application the defences as well as the summons must be before him so as to avoid the necessity of making up a record in condescendence and answers in the application. I make this remark because I am surprised to see such a record made up, and I must say I do not admire the form of process.

Lord Craighill—I can only say that since 1874, when I became a Judge, this is a form of process to which I have been accustomed, and I am not prepared to cast any doubt upon its competency.

Lord Young—I must say I do not like this condescendence and answers, and I do not recollect seeing anything of the kind before.

Whether in a summons of reduction, before defences are lodged, an application for recal of arrestments is not competent I would not like to say. I should think that in a case like this, where there is no great urgency, the Lord Ordinary might say, “Renew your application at a later stage when I know something of the case.” Or in a case of urgency, he might, on a statement made at the bar, act as seemed just. This, however, is certainly a most ponderous proceeding, and I desire to express the opinion which I understand is shared by both your Lordships that it is not a proceeding to be encouraged. Such an application should be incidental to the cause, and not a separate process. Our judgment, then, here will be, that we vary the Lord Ordinary's interlocutor to the extent of restricting the arrestments in the hands of the trustee to £1200 in place of recalling them, and quoad ultra refuse the reclaiming note.

Lord Rutherfurd Clark—I rather think, after what has fallen from your Lordship in the chair, and on reconsideration, that as an action of reduction must be enrolled before defences are lodged, such an application as the present at that stage is competent in such an action, but still I think it should stand over until the defences are lodged

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