BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Creditors of Patrick Bar v His Relict. [1731] Mor 8147 (31 January 1731)
URL: http://www.bailii.org/scot/cases/ScotCS/1731/Mor1908147-053.html Cite as:
[1731] Mor 8147
Arrestment upon a debt in diem. - Upon a dependence.
Creditors of Patrick Bar v. His Relict
Date: 31 January 1731 Case No. No 53.
Click here to view a pdf copy of this documet : PDF Copy
In a competition amongst arresters, an arrestment founded upon an annuity, and bearing to be for payment of bygones, and for security in time coming, was found preferable according to its date, not only for all the terms’ aliments due when the arrestment was laid on, but also for those that were due at the time of the competition. It was argued against this, That an arrestment upon an obligation, having tractum futuri temporis, can have no further effect than for what was actually due when it was laid on. It was on the other hand pleaded, That this rule suffers an exception, in case of the debtor's insolvency, which was the case here; and there arrestments in security are as allowable as adjudications in security. N. B. The annuity here was run out before the competition, so that in effect there is nothing in this decision but what is comprehended in the general rule about the preference of arrestments laid down in Watkins, No 170. p. 820., unless it be that when the debtor is vergens ad inopiam, arrestment may be not only founded upon a debt before the term of payment, ubi dies cessit, but also for security of future annuities ubi dies nec cessit, nec venit. But it came not to be determined, whether the arrestment in security could screen the subject from posterior arresters, not only for payment of bygones for which there was parata executio at the time of the competition, but also for security in time coming of the annuities as they should fall due, which indeed is the important question. See Appendix.
