Subject_1 ARRESTMENT. Subject_2 What Subjects Arrestable.
Ker v. Knows
Date: 29 January 1635 Case No. No 36.
A sum, in the struation of the above else, arrestable before the term of payment.
Click here to view a pdf copy of this documet : PDF Copy
One Ker, donatar to Robert Mudie's escheat, after general declarator thereon, and also after special obtained against one Craw, debtor of a sum to the said Robert Mudie; he arrests in Mr Christopher Knows' hands the like sum, owing by him to the said Craw, and pursues to make it furthcoming. And the defender alleging, That the sum was not arrestable, because the same was owing by a bond, the term of payment whereof was Whitsunday and in case of failzie then of payment, he was obliged to pay annualrent therefor, whereby the same became heritable, and so not arrestable. This exception was repelled, because the arrestment was laid upon this sum before the term of payment; at which time the heritable clause could not take effect: Likeas after the term, how soon it was payable, he pursued for the same; and, as if the creditor had died before the term, the sum would have pertained to his executors, and not to his heirs, notwithstanding of that heritable clause; so the arrestment before the term was found to affect the sum, notwithstanding of the tenor of the bond: It is ever doubted by me, if these preceding decisions be good, whereby sums owing by such bonds, after the terms of payment, are found not arrestable; for I think the clause to pay annualrent therefor, nor no surety, nor other right following thereon, ought to exeem the same from arrestments. (See case between the same parties; voce Jus quæsitum tertio.)
Act. Craig.Alt. ——Clerk, Gibson.
Fol. Dic. v. 1. p. 55. Durie, p. 745.*** Spottiswood states the same case thus:
William Ker, donatar to Robert Mudie's escheat, arrested in Mr Christopher Knows' hands 4000 merks, addebted by him to James Craw, who was debtor to the rebel in as much; and having, in a special declarator, summoned Mr Christopher to make the same sum forthcoming, it was alleged absolvitor, because the same was heritable, and so not arrestable. Replied, This ought to. be repelled, because an heritable bond may be arrested; and, however, this sum was moveable the time of the arrestment, it being made before the term of payment. Duplied, Although it might appear to have been moveable the time of the arrestment, yet the pursuer could not seek it to be made forthcoming before the term of payment was come, at which time it was heritable, and so could not be arrested. The Lords repelled the exception, and found that an heritable bond might be arrested.
