Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION. VIII.

Quinquennial Prescription.
Subject_3 SECT. I.

Prescription of Arrestments

Margaret Thomson and Thomas Ainslie,
v.
William Simpson

Date: 28 July 1774
Case No. No 245.

A process of multiple-poinding, brought in consequence of an arrestment, preserves the arrestment from prescribing, although the arrester's interest is not produced in the multiple-poinding.

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In a competition between these parties,

Objected on the part of Simpson, That Thomson and Ainslie could draw no benefit from an arrestment which they had used in September 1761, as creditors to one Tait, by an accepted bill, in the sum of L. 173 Scots of principal, and interest due thereon, to which they had acquired right, because cut off by the quinqennial prescription.

Answered; The arrestment in question is at this moment a valid and subsisting diligence; for, that there was a process of multiple-poinding raised upon that arrestment immediately after the arrestment was laid on, which was conjoined with an action of spuilzie, brought at the objector Simpson's instance against one M'Lean, who had executed a poinding of part of the common debtor's effects, to which Simpson alleged he had a disposition; and, being so conjoined, the proceedings were continued, without sleeping, till the 23d of July 1767, and were again wakened on the 16th January 1771, a year and several months before the five years elapsed; which circumstance, of itself, is sufficient to keep the arrestment from prescribing.

But, 2do, To put an end to any doubt upon this head, there is a judgment of this Court, upon this precise point, “The quinquennial prescription of arrestments found interrupted by a multiple-poinding raised by the arrestee, executed against the arrester, and seen and returned by his procurator; for a multiple-poinding is considered as a common process, which any of the creditors may take up and obtain decreet upon; whence it must have the same effect in law as if it were at the instance of the arrester himself;” 20th July 1732, Crawford contra Simpson, No 244. supra. Now, the summons of multiple-poinding, in the present case, quadrates in every particular with the essentials required by the decision just mentioned. The summons is raised by the arrestees, executed against Thomson and Ainslie, as arresters; they are called on the margin of the summons, and a lawyer is marked as appearing for them, 5th December 1761. The same day, the summons is given out to that lawyer to see, and, on the 12th of December thereafter, it is seen and returned by him; and, therefore, at this hour, the arrestment 1761 is a valid and subsisting diligence, and must entitle the executors of it to the whole of their debt, principal and interest.

Objected, 2do, That although the multiple-poinding, proceeding upon Thomson and Ainslie's arrestment, was conjoined with the action of spuilzie against M'Lean, still their interest was not produced in that multiple-poinding, nor sooner than the 25th of November 1771, after the process of multiple-poinding was wakened.

Answered; The act 1669 does not say that arresters shall produce their interests in the multiple-poinding brought, to preserve their arrestments from prescribing; and the above-mentioned decision clearly shows, that there is not the least necessity for producing the arrestments in the multiple-poinding for that effect. As a process of multiple poinding was brought, the particulars required by the act of Parliament and the above-mentioned decision being followed forth, this preserves their arrestment from prescribing.

The Court considered, that here there was one decision directly in point, and none adverse; and, accordingly, gave judgment as follows:

“Find the quinquennial prescription in this case sufficiently interrupted; therefore sustain the arrestment 1761, and find, that, in consequence thereof, Thomson and Ainslie fall to be preferred not only to the principal sum of L.173 Scots, but also to the annualrents due, or that might become due thereon.”

Reporter, Auchinleck. Act. L. Advocate. Alt J. Boswell. Clerk, Tuit.

N. B. Thomson and Ainslie, before resorting to their original arresment 1761, had pleaded, as a ground of preference, the priority of an arrestment at their instance, as creditors to Tait, laid on in 1771, whereby they arrested a precise determinate sum, as the supposed amount of the debt due by the arrestees severally to Tait, or of the effects belonging to Tait in their hands; and the question thereupon arising was, whether that arrestment in 1771 could be effectual beyond the precise sum arrested, or whether, e contra, it would be extended to the full sum in which they were creditors to Tait, in so far as the same exceeded the sum arrebted? The Lord Ordinary sustained the arrestment to the full extent of the debt due by Tait to them, both principal and annualrents, though exceeding the sum arrested, which was adhered to by the Court, upon a petition and answers; against which Simpson having reclaimed, the Court, upon the 6th of August 1773, gave judgment as follows: “Find, that the preference decreed to Thomson and Ainslie can go no further than he sum of L. 173 Scots, the sum for which the arrestment 1771 was used.” But Thomson and Ainshe having leclaimed, praving to find, that, in virtue of the arrestment 1761, or of the arrestment now laid on, (1771) they were entitled to recover payment not only of the principal sum of L. 173 Scots, but of the annualrents thereof, the Court finally gave judgment ut supra, sustaining the prior arrestment, as effectual both for the sum arrested, and likewise the interest accruing thereon.

Fol. Dic. v. 4. p. 104. Fac. Col. No 128. p. 342.