Scottish Court of Session Decisions

Subject_1 LEGAL DILIGENCE.
Subject_2 SECT. VI.

Arrestment upon a debt in diem. - Upon a dependence.

Coning and Boik
v.
Cowan

Date: 9 February 1705
Case No. No 50.

Found in conformity with Simpson against White, No 46. p. 8139.

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Walter Ewing merchant in London, being debtor to one Coning, also merchant there, in L. 135 Sterling, as also to one Robert Cowan merchant in Glasgow in another sum, they both arrest in the hands of Hamilton of Orbiston, a debt owing by him to Ewing. In discussing the competition, it was found, the sum by the conception of Orbiston's bond, was liferented by Ewing's mother, so the fee only belonged to him after her death, whereon she was preferred to the annualrent during her life; and then Coning, as the first arrester, came in after her death, primo loco, and Cowan only secundo loco. Whereupon it was alleged, That though Coning's arrestment was preferable, yet it could affect and carry no more of the sum arrested in Orbiston's hand, but allenarly as much as corresponded to the principal and annualrents that were owing to him at the time of laying on the arrestment; but as to any annualrents that shall run hereafter, till the sum can be made forthcoming and paid after the liferenter's death, he can have no preference before Cowan; 1mo, Because they were not due, nor in being at the time of laying on the arrestment; 2do, At this rate, if the liferentrix live any considerable time, Coning's annualrents current during her life will exhaust the whole bond, and so his ranking will be elusory, and nothing will be left to pay Cowan so much as a part; but their debts must be considered as they stand now, and not as they grow, and may be accumulated at the liferentrix' death. Answered, This was a new and unheard of doctrine, that posterior annualrents had not the same privilege with those due before the arrestment; for if I adjudge, will not my right prefer me to my annualrents due after my decreet of adjudication, as well as for those annualrents that were owing me at the time of my leading it? Will not an inhibition secure my subsequent annualrents as well as the bygones due before my inhibition? If a debt be suspended ad diem vel sub conditione, and several years intervene before the term of payment come, or the condition be purified, and if on this debt arrestment is used, who can doubt but the arrestment will carry him to all his annualrents that intervene betwixt his arrestment and the existence of the condition or day? It is true a forthcoming is a legal assignation, and so assigns only to what is due at that time liquidly; yet that only holds where the debt arrested is instantly due, and the forthcoming takes present effect, and not where the debt cannot be lifted, through the impediment of a liferentrix. The Lords found Coning's arrestment extended to secure him for his subsequent annualrents, as well as those due before his arrestment.

Fol. Dic. v. 1. p. 539. Fountainhall, v. 2. p. 267.