Arrestment in security before the term of payment of the arresting debt is looseable upon caution.
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——Wightman in Edinburgh gives bond to his wife, obliging him to pay to her, her heirs and executors, 4000 merks, in satisfaction of her third, and provision of their conquest, and the contract, payable at the first term after his own death; the wife having died before the husband, her nearest of kin,——Mossman, confirms herself executrix to the defunct's wife, and gives up in inventory this bond of 4000 merks, and thereupon obtains decreet against Aikman the husband, and upon the decreet arrests several sums of his, whereupon Aikman gives in a bill for loosing the arrestment; but, in respect that ordinarily arrestments upon decreets cannot be loosed; the matter was considered by the Lords, and they remembered that lately they had loosed arrestment upon consignation of the sum, for which the arrestment was laid on.
And they found, That, in this case, the term of payment neither being come, nor near, being after the debtor's death, who is yet alive, that there was no reason his whole means should lie under arrestment all his life; they did therefore loose the arrestment upon sufficient caution, at the sight of the Lords.
Fol. Dic. v. 1. p. 59. Stair, v. 2. p. 363.Gosford reports the same case thus:
This day there was a query proposed to the Lords, upon a bill given in for loosing of an arrestment upon caution, bearing, that Mossman having given a bond to his wife for payment of the sum of 4000 merks, at the first term after his decease, her executors confirmed, having given up this bond in the inventory of debts, and thereupon obtained a decreet against Mossman, upon which they had arrested the whole debts due to him, and his whole moveables, which he craved to be loosed upon sufficient caution. The reason of the query was, That the arrestment, being upon decreet, could not be loosed upon caution by our law and practique, but only upon consignation.——The Lords having considered the case, did loose the arrestment upon sufficient caution, upon this reason, that our law and practique, refusing to loose arrestments upon decreets, and offer to find caution, was only where decreets were given, which were to have present execution or at a certain time. But this decreet having been given upon a bond, which could not take effect till after the death of the granter, which was uncertain, it was against reason and law to deprive him of making use of his debts for commerce or livelihood, or to consign the whole debt decerned, which would be useless until his death, and that it was sufficient that he should find caution, that the said debt should be punctually paid, conform to his bond, at the first term after his death, which did absolutely secure his wife's executors, et ratio legis being only to secure by arrestment, could not be farther extended than for debts which were presently due, and at a certain term.
