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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Anent Arrestments
1676.
July.
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In competition between two arrestments, the first arrestment is laid on by a bond and debt, whereof the term of payment was not as yet come; a second arrests after, and pretends preference, in regard his term of payment was come, and the other's diligence was nimious and preposterous; for I suppose them both equal as to the pursuing to make arrested goods forthcoming.
The Lords found, on the 3d of July, 1628, Scot, that arrestment might lawfully be used on a bond, whereof the term of payment was not come. But on the 19th of November, 1623, Ker contra Colthird and Patersone, they found the contrary, unless the negative particle, Not, be there redundant and wrong inserted. But a second question arises more knotty, where the term of payment of the debt that is arrested is not come the time of the first arrestment, and is past the time the second arrestment is laid on,—Quæritur, If the second arrestment will be preferable to the first, since the law non amat nimium diligentes? Dury, 20th March, 1633, Sympsane contra Whyte, tells, the Lords found that pæcunia debita ad diem might be arrested before the day of payment of it came, for here the obligation is presently effectual, albeit the solution be superseded to a day: cessit dies, licet nondum venit solutionis exactio, L. 213. D. de Verborum Signif. sup. No. 48, February, 1671. (Vide parag. secundum, ibique Vinnium in Commentario, Institut. de Verborum Obligationibus. Vide 17th July, 1678, Pitmedden and Paterson.) It seems debts ad diem may either be the foundation of an arrestment activè, or the subject of an arrestment passivè, before the terms of payment come, because debitum vere subest; but where the debt is conditional, during the dependence or not existence of the condition, no arrestment or other diligence can validly affect these debts passivè, or be done upon them activè, if any middle diligence depending on a debt not conditional intervene, or arrest a debt after the condition of the debt arrested exists; for if no impediment interpose, it is reasonable that the diligence convalesce and turn effectual, when the condition either of the debt arrested or arresting is purified: ex lege 14, D. de Pignoribus, quis potest persequi pignus, licet dies debiti sui non-dum venerit. Upon thir principles is also grounded that disparity of transmission by succession, where the creditor in an heritable bond dies before the term of payment, for then the debt falls to his executors and not to the heir, because the heritable destination had not as yet taken effect. Vide Dury, 10th March, 1630, D. Lindsay contra Town of Edinburgh; see 51 act, Parliament 1661.
Here arises a third question,—A creditor by an obligement under his hand, supersedes execution upon such a bond for a certain space, within which time he finds it necessary for him to inhibit his debtor; the inhibition is quarrelled, as contrary to the paction. It is answered,—Inhibition is not an execution, but merely a diligence for security of his sum. The Lords found it so on the 15th of June, 1669; (see it supra, between Brown of Gorgiemilne and Kinloch.) Vide supra, June, 1673, No. 399. [Birnie against Crawford.]
