Arrestment upon a debt in diem. - Upon a dependence.
Douglas and Acheson v. Gilbert
Date: 12 January 1628 Case No. No 45.
In a competition of arrestments, a citation before the term of payment of the debt arrested, gave no preference.
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In two actions to make arrested goods forthcoming betwixt Douglas and Gilbert Acheson, two creditors to Michael Gilbert, minister of North Berwick, who arrested in the goodman of North Berwick's hands some moneys addebted by him to the said debtor, and some victual for his stipend, and desiring him to make the same forthcoming; the Lords preferred Acheson to Douglas, albeit Douglas had intented his action against North Berwick before Acheson, and had cited him before the other; likeas the day of compearance in his summons was past, before the other party had raised his summons, which the Lords found not to be any cause of his preference, as the party alleged it ought to be; the reason whereof was, because this priority of his action was not found to be any more timely diligence than the other parties was, which was done after him; seeing that first diligence was raised, executed, and done before the term of payment came of the debt arrested, and the other posterior in time was found to have done all lawful diligence, which could be required, seeing immediately after the term of payment was come, he arrested, and upon the morrow thereafter he raised his summons; and now being in this action as far advanced as the other party was in his summons, that prior nimia diligentia could not give the preference to the other, who had omitted to do nothing, but had used all lawful diligence in due time, which could be profitably and effectually done; and therefore seeing his debt was anterior to the other creditor's debt, and his term of payment before the other party's term of payment, and that he had arrested first, and before the arrestment made by him who first cited; the Lords preferred him, as said is, and had no respect to the said first citation. In this process many of the Lords were of the mind and opinion, that an action to make arrested goods forthcoming, intented before the term of payment of that debt come, which is desired to be made forthcoming, albeit it desire the payment to be made only after the term of payment be past, is not a just and lawful diligence; but that another using diligence, and pursuing immediately after the term of payment, will be preferred to him.
Act. Aiton.Alt. Dunlop.Clerk, Gibson.
Durie, p. 326.
