Click here to view a pdf copy of this documet : PDF Copy
The price being arrested in a purchaser's hand, he deponed in the forthcoming, that he was debtor in a certain sum as the price of the lands, payable the first term after purging of incumbrances. When the incumbrances were purged, which was many years thereafter, the arrester raised a summons of wakening of his forthcoming, and insisted to have decreet. The condition in the defender's oath being now purified, the defence was, that the action upon the arrestment was prescribed. Answered, That till incumbrances were purged the arrester was not valens agere. Replied, The law has said, “That all actions on arrestments shall prescribe, unless wakened every five years;” therefore, how fruitless soever the wakening might otherwise be, it was by the disposition of law requisite, in order to keep the arrestment alive. The Lords sustained the defence of prescription. See Appendix.
