Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Whether Arrestment reaches Acquirenda.

Daniel Seton, John Cleland, and Others, Creditors-Arresters of Margaret, Countess of Caithness,
v.
The Countess of Caithness, and Thomas Heddererwick, her Assignee

Date: 16 June 1761
Case No. No 98.

Current term of a separate aliment to a wife, carried by an arrestment used prior to the term of payment.

Click here to view a pdf copy of this documet : PDF Copy

In the year 1741, the Earl and Countess of Caithness entered into contract of voluntary separation, by which the Earl obliged himself to pay to my Lady L. 1000 Scots yearly, for separate aliment; which she accepted of in full of all she could ask of the Earl, with liberty to either of them to renounce this agreement upon notice to the other party.

In 1754, the Countess notified to the Earl her repudiation of the contract 1741, and brought an action for a suitable separate maintenance, in which she obtained judgment, finding her entitled to L. 200 Sterling yearly, over and above the interest of her own proper funds, as the same should, from time to time, be settled and liquidated, commencing at the term of Martinmas 1756, and payable by two equal moities at Whitsunday and Martinmas yearly.

In June 1757, Daniel Seton, John Cleland, and others of the Countess's creditors, used arrestments in the hands of the Earl, with a view to attach the current term's annuity, which was payable at Martinmas thereafter.

Upon the 5th November 1757, the Countess granted an assignation of that term's annuity to Thomas Hedderwick, and others of her creditors. The Earl brought a multiplepoinding, in which a competition ensued betwixt the arresters and the assignee.

It was argued for the assignee, That there was no aliment due or payable by the Earl of Caithness at the time when the arrestments were used in his hands; and therefore there was no subject which could be affected by these arrestments: That an aliment was properly due de die in diem, though, by the Lords decree, the term of payment be suspended to Martinmas that year; and therefore no more could be affected by the arrestments than what was due at the time they were laid on; 22d December 1676, Dick contra Sir Andrew Dick, Dirleton, No 414. p. 202. voce Personal and Transmissible.

It was answered for the arresters, That this annuity is no more due de die in diem, than the annualrents of bonds or annuities due to a liferenter. By the above judgment. it is not payable de die in diem, but at two terms in the year, Whitsunday and Martinmas, by equal portions; that is, at the same terms at which her jointure would have been payable in case of the Earl's death; and therefore the current term was affectable by arrestment, in the same way that a current half year's rent or jointure would be affectable.

The Lords preferred the arresters.

Reporter, Auckinleck. Act. Bruce. Alt. Walt. Stewart. Fol. Dic. v. 3. p. 43. Fac. Col. No 36. p. 71.