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John Moir Merchant in Stirling, v The Creditors of Alexander Jack. [1709] Mor 5197 (10 June 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor1305197-031.html Cite as:
[1709] Mor 5197
Subject_1 GROUNDS and WARRANTS. Subject_2 SECT. V.
Grounds and Warrants of Decrees.
John Moir Merchant in Stirling, v. The Creditors of Alexander Jack
Date: 10 June 1709 Case No. No 31.
A decree of constitution, obtained in an inferior court, found sufficient to warrant a decree of forthcoming.
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In a competition for a debt due by John Moir of Craigarnal to Alexander Jack, betwixt John Moir merchant in Stirling, who had obtained a decreet of furthcoming before the Stuart-depute of Monteith against Craigarnal, upon two debts due to him by Jack, and the other creditors of Jack who had assignations to the subject; the assignees repeated a reduction of the said decreet upon these grounds, 1mo, Nothing was produced for instructing the first debt of L. 55, but only a horning and execution of arrestment, proceeding on a decreet of the Commissary of Dumblain, and not the decreet itself; whereas a horning, tho' it sufficiently warrant arrestment, doth not instruct or constitute the debt, without producing the ground thereof. 2do, The arrestment for the other debt of 250 merks was unwarrantable, being used upon a bond registered in the Stuart-court books of Monteith, containing a precept in the end thereof in these terms:
“Attour, ordains all necessary execution to pass hereon within six days, in due and competent form as effeirs, next after the charge hereby warranted to be given, is orderly given and expired.”
Which precept doth not warrant arrestment, but imports only that horning, containing arrestment, may, after elapsing of the days of the charge given, be directed thereon. Nor is arrestment execution of a decreet of registration, but a new diligence, requiring an express warrant, as letters under the signet, or a special precept by the inferior judge, for directing the officers and messengers in their execution, Stair, Instit. b. 3. tit. 1. § 24.; Spottiswood, tit. Arrestment, p. 17. as well as inhibitions, adjudications, and other legal executions require special warrants.
Answered for the arrester, 1mo, Horning, being the warrant of arrestment, is a sufficient title to found a furthcoming, without necessity to produce the bond or other ground of the horning, unless the same be specially called for. And in this case, the decreet of constitution was not called for; the principal debtor and the party in whose hand the arrestment was laid on, (who only had the interest to call for it,) being convinced of the verity of the debt. Besides, the objection is instantly taken off by production of the said decreet of constitution. 2do, John Moir was in bona fide to arrest upon the foresaid registered bond and warrant, because it is offered to be proved, that it is the constant custom within the Stuartry of Monteith so to do; and though such a custom were unreasonable, the Lords are not in use to annul bygones, but only to declare what ought to be done in time coming.
The Lords found the producing the decreet of constitution in the competition, sufficient to support the decreet of furthcoming as to the L. 55; but sustained the objection against the arrestment for the 250 merks, and found that the same was unwarrantable.
