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Scottish Court of Session Decisions >>
Mr William Lauder v Mr David Watson. [1685] Mor 814 (00 March 1685)
URL: http://www.bailii.org/scot/cases/ScotCS/1685/Mor0200814-162.html Cite as:
[1685] Mor 814
Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Mr William Lauder v. Mr David Watson
1685.
March. Case No. No 162.
A posterior arrester preferred, having obtained the first decreet.
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Mr David Watson having arrested, on the 28th November 1684, and executed his summons for the first and second diets, upon the 9th of December, and 7th January following, and called his summons the 16th of January; Mr William Lauder arrested the same debt upon the 10th of December, a day after the other's summons was executed for the first diet, and with great vigilance got his process first returned and enrolled, and a decreet thereon pronounced against the defender, reserving to the other arresters compearing, to be heard upon their preferences.
Alleged for Mr David Watson, That he ought to be preferred, because he had raised his summons before Mr Lauder's arrestment.
Answered for Mr Lauder, That he is preferable for having the first consummate diligence by decreet; nor can it be alleged, that his decreet was recovered by the common debtor's partial favour; and both processes are before the Lords, where the methods are equal, and the diligences are of the same kind.
The Lords preferred Mr William Lauder, and did not bring in the other pari passu.
Harcarse, (Arrestment.) No 89. p. 17.*** Fountainhall reports the same case thus:
The competition betwixt Mr William Lauder, David Watson, and other creditors of James Clark of Wrights-houses, on their arrestments in Mr George Arnot's hands, is reported by Harcarse; and the Lords prefer Mr William Lauder, as having the first citation, out-giving, enrolling, and decreet, in respect of this prior diligence, though she other creditors arrestments were prior in date, but their summonses for making furthcoming were some weeks posterior to his; for though of old, in such a case, they used to bring in arresters, who were not in mora, pari passu; yet now the Lords consider the arrestment only as an inchoate and incomplete diligence, and like an assignation unintimate; so that if a posterior arrester get the first decreet, (which answers to an intimation) they now prefer him.
Fol. Dic. v. 1. p. 61. Fountainhall, v. 1. p. 355.
