Subject_1 ARRESTMENT. Subject_2 Arrestment affects only bygones and the term current.
Lesly v. Cunningham
Date: 28 July 1669 Case No. No 91.
Found in conformity with Brown against Tenants, No 89. P. 765.
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Lesly having arrested certain sums for payment of a tack-duty due to him: It was alleged for the party, in whose hands arrestment was made, That the arrestment could not reach any further than for the tack-duty arrested, which was due the time of the arrrestment, but not for any term following the arrestment, because arrestment being a legal execution, can no more proceed upon a debt, before the term that the debt be due than apprising; and further alleged, That they had made payment of the subsequent terms to the debtor, which they were in bona fide to do, knowing no law nor custom to the contrary.
The Lords repelled the defence, and found the arrestment to be valid for that term's duty that was then running, and found that the arrestment was rather like to an inhibition than an apprising, which gave present payment.
Fol. Dic. v. 1. p. 57. Stair, v. 1. p. 649.*** Gosford reports the same case thus:
In an action to make arrested goods furthcoming at the instance of the relict of Mr George Lesly, who had arrested in the hands of Duke Hamilton the sum of money due to Cunningham, who was cautioner in a tack for the tenant: The question was, That the pursuer had arrested for a term's duty which was only in cursu, and the term not come, before which it was not due.—It was alleged, That the tenant himself not being liable, neither he, far less his cautioner, could be decerned to make payment as debtor; and consequently, cautioner's money could not be arrested.——The Lords, notwithstanding, did find the arrestment valid, in respect that the subsequent term's duty was constituted by a preceding tack, for which arrestment might be used, as being only pignus prætorium, which did resolve in a security, that the term of payment being past, the sums arrested might be made furthcoming; and in law ubi cessit dies licet nondum venit, such diligences are allowable.
