Subject_1 ARRESTMENT. Subject_2 Arrestment affects only bygones and the term current.
L Halkerton v. Falconer
Date: 18 January 1628 Case No. No 90.
Arrestment of the annualrents of an heritable sum, though made both for terms to come, and for bygones, was sustained only for bygones, and the current annualrents.
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In a double poinding betwixt L. Halkerton and Hew Falconer, commissary of Murray, who both acclaimed from the Laird of Allardes, certain sums of money, addebted by him to Falconer of Ballandro, who was common debtor to both the parties, the one, viz. Halkerton seeking the same from Allardes, as assignee made thereto by Ballandro; and the commissary seeking the same, as a creditor, who had arrested in Allardes' hands, and had obtained decreet against him, to make certain of the annualrents of the principal sum furthcoming to him, upon Allardes' oath and confession, whereto he had referred the debt, and whereupon he had obtained decreet before the Lords, in June 1627, for so many of the annualrents, which Allardes then in his oath had granted him to be addebted; for the principal sum was not arrestable, being owing by an heritable bond. Halkerton's assignation was before the arrestment, which arrestment was executed in anno 1625, and the annualrents controverted for, were for the years 1626 and 1627, and so for the two crops, after the year wherein the arrestment was executed, albeit in the execution, both all the bygone annualrents, and also the annualrent for all terms and years to come were arrested.——The Lords found, That the arrestment could not extend to any annualrents of any years to come, subsequent after the time of the executing of the arrestment, albeit the same was specifice made, both of bygones, and in time coming; for they found, That the annualrents of years thereafter could not be arrested, by that arrestment, and that the same could not extend thereto, but only to the annualrents owing, and which the debtor was owing at the time, or to such terms as were begun, and running at that time, and could not comprehend terms which began after the arrestment; and therefore preferred the assignee to the arrester, notwithstanding of his sentence, which decerned him to be payed by Allardes, of these terms foresaid, and superceding the execution, while the terms decerned should be past; and found the assignation preceding the arrestment to be sufficient, for the assignee's probation, albeit it had never been intimated, seeing the assignee had received payment from Allardes as assignee for divers terms of the annualrent, after his assignation, and before the arrestment, which was as good as an intimation; neither was it respected, what the arrester alleged, that the debtor's self had received payment divers years of the annualrent from Allardes, since Halkerton's assignation, which he alleged to be a presumption of simulation betwixt the cedent and assignee; which was repelled, in respect of divers other years since, and before the arrestment, paid to Halkerton, as assignee; and so the assignee was preferred.
Act. Hope & Falconer.Alt. ——.Clerk Gibson.
Fol. Dic. v. 1. p. 57. Durie, p. 329.
