A decree of forthcoming sustained, though given before the term of payment of the sum arrested, execution being superseded till after that term.
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In an action betwixt William Brown and the Laird of Johnston, wherein the Laird of Johnston was desired to be decerned to make forthcoming to Brown, a sum addebted by the Laird of Johnston to Thomas Johnston, for satisfaction of a sum owing by the said Thomas to the pursuer, and which was arrested by the pursuer in the Laird of Johnston's hands; the Lords decerned the Laird of Johnston to make the same sum forthcoming to the pursuer, as was desired in the summons, albeit that the term of payment of that sum addebted by the Laird of Johnston to Thomas was not come, neither at the intenting of this action, neither was the same to be paid for diverse terms yet to come; but the Lords superseded all execution which might be used upon this decreet against Johnston, while the term of his obligation were by-past.
The like was also done the day preceding this, in the action betwixt James Renton and Mr John Acheson, whereby James Renton was decerned to make a sum arrested in his hands, at the instance of Mr John Acheson a creditor, forthcoming to the creditor, after the decease of the said James Renton, seeing he was not debtor to the said Mr John for the same, while, after his decease, the liferent thereof being provided to himself; and, therefore, superseded the execution at the creditors instance, during James Renton's lifetime.
Act. Belshes.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 1. p. 538. Durie, p. 112.
*** See a similar decision 3d July 1628, Scot against Drumlanrig, No. 45. p. 846. voce Assignation.
*** The case of Brown against Johnston is reported also by Haddington:
William Brown pursued the Laird of Johnston to make a debt owing by him to Thomas Johnston of Castle-milk, and arrested in his hands by the said Brown, furthcoming to him, and referred the debt to Johnston's oath; who granted that he had given a bond of 500 merks to Thomas Johnston of Castlemilk, which bore the principal sum not to be payable before Whitsunday 1625, and some other conditions, whereof he remembered not particularly; but he should have retention of the sum, if the lands disponed to him by Castlemilk should be evicted or distressed. I proponed, that he could not be decerned to pay the sum, while Whitsunday 1625 were passed; notwithstanding whereof, the Lords decerned presently to pay, the term of payment being by-past.
