Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 In whose hands Arrestments may be used.

Competition, Richard Lockwood, &c with William Wilson.

Date: 4 July 1738
Case No. No 68.

An arrestment, in the hands of a consignee, upon a lawful consignation, found preferable to a posterior one execute against the consigner.

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Sir James Campbell of Auchinbrek, having purchased several adjudications affecting the lands of Kirnan, did, in virtue thereof, insist in a sale of that estate; during the course of which, it was found, That Sir James was bound to communicate the eases he bad got from the creditors; whereupon a count and reckoning ensued, from which it appeared there was a balance due to Sir James; and which balance Kirnan, by a doquet at the foot of an account, obliged himself to pay, betwixt and Martinmas then next: This sum he offered to Sir James; but upon his refusal, Kirnan applied to the Lord Ordinary, craving, That he would authorise him to consign the money, which was accordingly granted, reserving the consideration of what effect it should have. In consequence of this interlocutor, Kirnan, on the 11th of November 1736, consigned the money in the clerk's hands; and, on the 19th, the Lord Ordinary, after hearing both parties, sustained the consignation: Likeas, on the 12th and 13th of the said month, Richard Lockwood, &c. as creditors to Sir James, laid on an arrestment in the clerk's hands; and, on the 18th, William Wilson, another creditor of Sir James's, arrested the said sum in the hands of Kirnan; whereupon a competition ensued betwixt them.

Pleaded for Richard Lockwood: That his arrestment, on the 12th, in the clerk's hands, ought to be preferable, in so far as the consignation was lawfully made and sustained by the Ordinary; whereby Kirnan was liberated from his obligation, which became void, in the same manner as if actual payment had been made to Sir James: That, as the debt was extinguished, so all collateral securities of course; as also, that the money consigned was not on the peril of the debtor, but of Sir James the creditor; and that a lawful consignation stopt the running of annualrents, and freed cautioners, even though by mutual consent, it should be passed from. Now, if this doctrine hold true, That the debt was extinguished by the consignation, it was not tenable, that Wilson's arrestment, in Kirnan's hands, after the consignation was lawfully made, could be effectual; since his obligation was extinguished at the date of Wilson's arrestment. Neither could it make any alteration in the argument, That, at the date of the arrestments of both competitors, Kirnan could have passed from his consignation and uplifted the money; because, 1mo, That would have been contracting a new debt, which could not have been affected by the prior arrestment. But 2do, Whatever be in this, it was sufficient for the present purpose, that Kirnan never made use of this option, which he is now precluded from by the foresaid interlocutor of the 19th of November; after which, it is impossible he could be decerned to make the sum consigned furthcoming.

Pleaded for William Wilson, who arrested in Kirnan's hands: That an offer can transfer no right to the thing offered, till it is accepted: Now, consigning the money was only following out the offer, and securing the subject in the hands of a consignatary, that it might be instantly furthcoming to the creditor, upon his acceptance, or that thereon the debtor might judicially get his obligation declared extinct, and the money adjudged to the creditor, in satisfaction of the same; wherefore, in case of consignation, upon the creditor's refusal to accept payment, there must either be an acceptance on the part of the creditor, or a judicial sentence in favour of the debtor, before the money consigned can become the creditor's property; and, consequently, the arrestment in the hands of the consignatary, before either of these intervened, was null, the money, till then, remaining the consigner's; which is further evident from this consideration, That, until one of these two things happened, the consigner had it in his power to uplist the sums at pleasure; as is established by L. 19. C. De usuris, in fine, and by a variety of decisions. Neither can it vary the argument that Kirnan did not make use of this option; seeing the only question here is, Whether the money was Sir James's the time of Lockwood's arrestment, or if Kirnan was debtor to Sir James the time of Wilson's; for, if the money was Sir James's, it is duly arrested, and must be made furthcoming to Lockwood; but, if it was not, then his arrestment could not affect it.

The Lords found the arrestment, laid on in the clerk's hands by Richard Lockwood, upon the 12th and 13th of November 1736, preferable to the arrestment laid on by William Wilson in Kirnan's hands, upon the 18th November 1736.

C. Home, No 97. p. 154.