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Scottish Court of Session Decisions >>
Robert Hamilton, Merchant in London, v Mr William Livingston of Kilsyth. [1705] Mor 768 (16 June 1705)
URL: http://www.bailii.org/scot/cases/ScotCS/1705/Mor0200768-093.html Cite as:
[1705] Mor 768
Subject_1 ARRESTMENT. Subject_2 Arrestment affects only bygones and the term current.
Robert Hamilton, Merchant in London, v. Mr William Livingston of Kilsyth
Date: 16 June 1705 Case No. No 93.
A person disponed his estate, reserving an annuity, to be paid per advance quarterly, under name of aliment. An arrestment in the hands of the disponee, found to affect the current term, although, none of the quarterly payments per advance, were at the time outstanding.
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Robert Hamilton, being creditor to the Viscount of Kilsyth, arrested twice in the hands of Mr William Livingston of Kilsyth, his brother, and raised a furthcoming: In which Mr William deponed, ‘That he was obliged to pay yearly to the Viscount, 2000 merks of aliment, and that quarterly per advance, conform to a disposition, made by the Viscount, of his estate to the deponent, reserving to himself the said annuity. And that the time of the arrestment he was resting none of these quarter payments, they having been paid per advance; and that he was debtor no other manner of way to the Viscount.’
The defender craved to be assoilzied, in respect arrestment cannot affect subsequent terms, but only bygone rests, and the current term, 28th July 1669, Leslie contra Cunninghame, No 91. p. 766. And he was resting nothing of bygones, and had paid bona fide the current terms arrested per advance. For an arrester can be in no better condition than the person whose debt is arrested; where he can have no action for direct payment, neither can the arrester have for making furthcoming. Now the time of the arrestment no action was competent to the Viscount for the current term, paid according to paction per advance, nor yet for a subsequent term.
Alleged for the arrester:—That the Visount's aliment, or liferent, being paid per advance, could never be arrested, if the arrestment did not affect subsequent terms.
Answered: The aliment was fairly and justly constituted without the least design to defraud any creditor; and the punctual payment per advance, according to paction, can be no ground to alter the case in law: For no man is bound to keep his creditors money from him one moment after it falls due, to wait for arresters.
The Lords upon advising the oath, with the Viscount's disposition to the deponent, found the debt acknowledged to be of the nature of a reserved liferent, affectable by arrestment; and therefore decerned.
