Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

John Mader
v.
Andrew Smith

Date: 22 January 1673

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In a suspension of double poinding, raised by Archibald Don, as debtor to Richard Gavenlock, against Mader and Smith, as creditors to the said Gavenlock, who had both of them arrested, and obtained decreets to make forthcoming against the suspender,—it was alleged for Smith, That he ought to be preferred; because he had done the first diligence, by getting a decreet to make forthcoming.

It was answered for Mader, That no respect could be had to Smith's diligence, because it was preposterous, et nimia diligentia, in respect the arrestment was used long before the term of payment of his bond; whereas Mader had arrested after the term of payment, and thereupon obtained decreet, before which he was not obliged to do diligence; as was found by practick in Durie, 12th January 1628, betwixt Douglas and Acheson.

The Lords preferred Mader to Smith, albeit posterior in diligence; and found, that Smith's arrestment and decreet, being before the term of payment, was nimia diligentia: which was hard; seeing that arrestments or inhibitions might lawfully be served before the term of payment; and the decreet to make forthcoming was justly given, superseding the execution, until after the term of payment; and that the case in Durie was upon the arrestment of a minister's stipend before it was due, being only in cursu, whereas, in this case of a personal bond, cessit dies, the time of the subscribing thereof by the debtor, licet nondum venit, until the term of payment.

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