Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Ranking of Arrestments.

John King, late Bailie of Glasgow,
v.
James and Marion Donaldsons, and their Curators

Date: 26 January 1714
Case No. No 167.

Arrestment laid on before the term of payment of the debt arrested, preferred to an arrestment laid on after the term of payment. See Watkin against Wilkie, No 170. p. 820. the same; and Mader against Smith, No 158. p. 812. the contrary.

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In a competition of the creditors of Mr John King, late minister of Slamannan, the Lords preferred Bailie King, the first arrester, upon his liquid bond, whereof the term of payment was past, albeit the term of payment of the debt arrested was not come to the Donaldsons' posterior arrestment, laid on upon their liquid bond after the term of payment of the debt arrested was elapsed.

Albeit, it was alleged for the Donaldsons, That though arrestments of debts, currente termino, render the subject litigious, with respect to the creditor who cannot thereafter uplift, and the debtor who cannot safely pay, yet they can never compete with regular arresters after the term of payment, in relation to whom these are considered as nimia et præmatura diligentia cui jus nostrum nunquam subvenit. Therefore, it hath been several times decided, that arrestment, used after the term of payment of the debt arrested, is preferable to an anterior arrestment laid on before the term of payment of the said debt; Douglas and Acheson contra Gilbert, Durie, p. 326. voce Legal Diligence; Charters contra Neilson, No 157. p. 811.; Lord Pitmedden contra Patersons, No 160. p. 813.; and Mader contra Smith, No 158. p. 812.; which is agreeable to the concurring opinion of our lawyers, Stair, instit. lib. 3. tit. 1. § 46.; M'Kenzie, instit. lib. 3. tit. 6.

It was answered for Bailie King, Seeing the subject arrested was as truly a debt, the time of his arrestment, when dies cessit licet non venerat, it cannot be excluded by any posterior diligence, unless he had been in mora according to the rule jura subveniunt vigilantibus. Otherwise it were in the power of bankrupts to prefer one creditor to another, by discovering, to such as they favour, the terms of payment of debts due to them, to the prejudice of others who cannot be supposed to know such private terms. 'Tis true that law makes a distinction betwixt arrestment for a debt, whereof the term of payment is not come, and arrestment for a debt, whereof the term of payment is elapsed, preferring the latter to the former, which anticipating diligence by a creditor before his own term of payment, except the debtor be lapsus or vergens ad inopiam, is reckoned diligentia nimia, or præmatura, as being contrary to paction, which is the case betwixt Pitmedden and Paterson in the 1678, and doth not meet this case, where the question is not as to the term of payment of the debt for which the arrestment was served, but the term of payment of the debt arrested. Nor yet is the case of Douglas and Acheson contra Gilbert to the purpose. For there it was only found, that an arrester of a minister's stipend was preferable to a posterior arrester, having raised the first summons of furthcoming, whereof the day of compearance was passed before the first arrester raised his summons. Besides, an arrestment of a minister's stipend, before the term of payment, is like arrestment of a conditional debt, seeing its being effectual depended on his surviving the term; and differs from this case of an arrestment of debt, whereof dies cessit though the term be not come. The Practique betwixt Mader and Smith is a single decision: And, farther, the first arrester there had not only arrested, but taken out a decreet of furthcoming before the term of payment, which was irregular. My Lord Stair, in the place cited by the Donaldsons, doth not give his own opinion for them, but narrative sets down a decision, 5th July 1673, Birnie contra Mowat and Crawford, by a mistake. (No 159. p. 812.)

Fol. Dic. v. 1. p. 60. Forbes, MS. p. 17.