Subject_1 ARRESTMENT. Subject_2 Ranking of Arrestments.
Mader v. Smith
Date: 23 January 1673 Case No. No 158.
Arrestment laid on after the term of payment, preferred to a prior arrestment, laid on before the term of payment of the debt arrested.
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Archibald Don, in Kelso, being debtor by bond to Richard Govenlocks, in L. 656, the same was arrested in his hands by John Smith and John Mader, creditors to Govenlock, who had obtained decreets for making furthcoming; and Don having raised a suspension upon double poinding; it was alleged for Smith, That he had the first arrestment, and the first decreet, and so was preferable in diligence.
It was answered for Mader, That albeit his arrestment and decreet were a little posterior, yet he ought to be preferred, because he had done the more orderly diligence, in so far as Smith had arrested before the term of payment of Don's debt, and had taken decreet for making furthcoming also before the term, which, though it bore to be paid after the term, yet it was præmatura diligentia; and if such were sustained against other creditors, arrestments and decreets might be used many years before the terms of payment; which, though it might be sufficient against the debtor, or against any voluntary right by assignation, yet could not be sufficient against another creditor doing a more orderly diligence, as was found January 12, 1628, Douglas contra Acheson, Durie, p. 326. voce Legal Diligence.
It was replied, That as inhibition may be used before the term, so arrestment is but an inhibition as to moveables; and as to the practique, it was only in the case of a minister's stipend arrested, which was no debt till the minister survived the term, nam dies nec venit, nec cessit; but in a bond, albeit the term was not come, dies cessit, sed non venit; so that it was a true debt when the arrestment was laid on.
The Lords preferred the posterior arrestment laid on after the term, and the decreet following thereupon.
