Subject_1 ARRESTMENT. Subject_2 Arrestment affects only bygones and the term current.
John Corse, Writer, v. George Masterton, Portioner of Bothkenner
Date: 31 January 1705 Case No. No 92.
An arrestment was laid upon a wife's annuity, payable out of land, for a debt due by the husband, who had right to the annuity jure mariti. The arrestment found to affect even the current term's rent, although, it being uncertain whether the wife would live till the term, dies nec cessit nec venit.
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The deceased George Masterton infefts Margaret Dalrymple, his spouse, in the liferent of some houses. After his death she marries one Muirhead; and he being debtor to Corse in a sum of money, Corse arrests the rents in the tenants hands, as falling under his debtor's jus mariti. George Masterton, the first debtor's heir, and the fiar of the lands, compears, and alleges, Corse's arrestment is null, because the subject arrested was no debt, and had no being at the date of the arrestment, because the existence of the debt depended on the two joint lives of the husband and the wife; and if any of the two had died before the term, there was nothing due, and so the arrestment fell to the ground; and what makes it due, is the liferentrix outliving the term, and till then no arrestment could affect it; for, before that, it was a non ens, and the arrestment had no foundation till they had outlived the term.—Answered, This is a notion never before advanced; for though the arrestment would eventually be ineffectual if either the wife or husband had died before the term, yet being laid on currente termino, and they outliving it, it is certainly a valid diligence; and has been so decided in a competition betwixt an arrester and an assignee; 27th July 1673, Creditors of Scot competing, No 39. p. 702.; and Stair, lib. 3. tit. 1. § 29. allows arrestments of debts before the term of payment; and arrestments on conditional debts are valid, as Dirleton observes, voce Jus mariti, and cites. l. 18. D. de reg. jur. and the case is clear in annuis legatis, § 3. Institut. de verb. obligat. l. 16. 1. D. eod. tit. —Replied, There is a great difference betwixt this case and arrestments on debts whereof the term of payment is not come; for there dies cessit licet non venit; but here it cannot be so much as said that dies cessit; for non subest debitum omnino till the term come; and they might as well arrest for all subsequent terms that the liferentrix shall happen to live, as for that current one. The Lords thought the casting of such arrestments might lay a foundation to defraud the creditors of liferenters; for, if their rents could not be arrested till the term were past, then by compounding and giving down a little they might uplift it summarily, and so prevent all diligence of creditors; and therefore the Lords sustained Corse's arrestment as valid to affect that current term, and repelled the allegeance of nullity against it.
