1000000030

931

Ihe.

r~Ljlé~

arreaed·may be adjudged

him!

therefore

does nOl, by our latet praélice, (all by the death of the

arreflee, but continues to fubGa,

a foundation (or

aélion of (orthcoming agaio(l his heir, while the rubje/l:

arrc(lcd 'remains

;/1

IIIdi~.

Far lers is arrdlment loíl,

eilher by tbe death o( tbe arrdler, or of the common

debtor.

'Wbere arreament proceeds oa a depending aélion,

may be loofed by the common debtor's giviog fecurity

to the arreíler for his debt, in the eveot it (hall be founa

due. ArretlO1ent fouoded on

decre~,

or on regillred ob·

ligations, which in thejudgment of law are decrees, can·

DOt be loofed, but upon paymen! or conGgnHion ; except,

Wbere the term of payment of Ihe debt is not Jel

come, or !he condition has nOl yet e!,iOed.

Where

the arrdlment has proceeded on a regillred contraél, in

hich the debts or mutual obligations are not liquid.

Where the decree is fufpended, or turned ioto a libe! ;

for, till the fufpenGon be difculred, or the pending aélion

concluded, it cannol be known whether any debt be truly

due.

100Gng takes off tlle

neXUJ,

which bad been laid

on the fubje/l: arreaed; fo that the meílee may thereafter

pay fafel yto his creditor, and the cautioner is fubílituted

in place of the arrellmeot, (or the arrcller's fecurity!

ret the arre(ler may, whilc !he fubjcél contintleS wilh

the arrellee, purfue him iD a fonhcoming, notwi!hfiandiDg

tbe 1006ng.

Arrefime'nt is only 3n inchoated or begun diligence

to perfeél it, there mufi be an aélion brought by Ihe aro

rcfier againfi the arrellee, to make the debt or fubjetl aro

Tefied (ortbcomiDg. In tbis aaion, the common debtor

mufi be called (or bis interea, that he ma'y bave an

oJ'

ponunity of excepting to the lawfulnefs or extent of tbe

debt, 00 which the diligence proceeded. Before a fonh–

coming caD be parfued, Ihe debt due by Ibe common

deblor 10 Ihe arrefier, mu(l be liquidaled; for the ar–

refier can be DO furthu intitled to the fubjeél arre(led than

10 tbe extent óf the debt due to him by the common debt·

oro Where the fubjeél amlled is a '[um of money, it

is,

by Ihe decree of (onhcoming, direéled to be paid to tbe

purfuer towards fatisfying his debt; where goods.are aro

refied, the judge ordaios them to be expofed fale, aod

Ihe price to be <lelivered to Ihe purfuer. So that in

ej.

Iher cafe, decrm of forthcoming

are

judicial ¡jJjgnations

to the amfier of tbe fubjea arre(led.

. 8..

lo .all competitions, regard is had to tbe dates, not

of !he grounds of debt, but o( tlJe diligences proceeding

upon tbem. In the ·competition of arrellments, Ihe pre–

ference il goveroed by their dates, accordiog to Ihe pri·

onty even o( bours, where it appears with any certainty

whieh is Ihe ·6rll. But, as amfiment is but abegun di·

ligence,

therefore.if

a prior arrel!er (hall negleél to infin

in ao aélion of

fort~coming

for fuch a time as may be rea–

fonably conRrued iotO a derenion o( his begun diligence,

he lores his preference. But, as dmliélion of diligence

not ea(¡ly prefumed, the dillance of above two years,

hetween Ihe 6r(l amOmenl and the dmee of fonhco·

ming, was found not to make fuch a

m~ra

al to iRtitle

the pollerior amller to a preference. This rule o( pre·

ference, according to Ihe dates of the feveral arrellmenll,

JlOldl, by our prerenl

pr~élice,

whether they have pro·

VOL .

Numb.65'

ceeded on a decree, or on

dependence; on oebll

yet payable. or on debts al ready payable ; provided the

pendency(hall bave beenc1ofed, or thedebt have beconle

payable, before Ihe ilrue of the compctition.

In Ibe competition o( amfiments with affignalions,

an allignation by the common debtor, imimmd before

arrefiment, is pre(erable 10 the arrefiment. If the affig.

nation is granled be(ore ane(lmont, bUI not intimmd

till after il, the arrel!er is prcfemd .

ro.

Poinding is that diligence affcéling moveable fub·

jeéh, by.which tbeir properry is carried direélly to the,

creditor. No poinding can proceed, till a charge be gi–

ven to the debtor to pay or perform, and the days

t~ere

of be expired, except poindings againll valr,ls for their

feu·dulies. and poindings again!! tcnants for rent, pro·

ceediDg upon the Iandlord's own decree ; in which the

ancient cunomof'poinding \\·ithoul a previous charge con·

tinues. A debtor's goods may be painded by one credi–

tor, though they have.been arrcUed before byanothe;;

for amament belng

b~t

an imperfe.:t diligence,. leaves

the right of the fubjeél llill in ¡he debtor, and fo canMI

hinder any

cr~ditor

fromufing a more per(eél diligence,

which has the effeé! of carrying the property direélly. to

himfeJf.

11 .

No cattle pertaining to the plougb, nor inllruments

of li!lage, can be poinded in the time of labouring or till–

ing the ground, IInlefs where Ihe debtor has no other

goods. By labouriog time is under(lood, Ihat time, in

which tha! tenant, wbofe goods are to be poinded, is

ploughing, though be fuould 'have beco earlier or later

than bis neighbours

but Cummedallowing does not fall

ander Ihis rule.

12.

In the executloo of poioding, the deblor' s goods

mull be apprifed, 6r(l on the ground of the lands where

they are laid hold on, and a fecond-time at the market–

crofs of tbe jurifdiélion, by Ihe'fiated apprifers thereof;

or, if there are none, by perfons named by tbe mell'enger

or other officer empluyed in the diligente. Next, the

.melfenger mu(l, arter public intimation by three oyelres,

declare the value of the goods according 10 Ihe fecond

apprifemenl, and require the.aebtor to make payment of

the debt, including .intere(l ana expences. If payment

(hall be offered to Ihe creditor, or in his ab(ence tO his

law(ul attorney; or i(, in caCe of refufal by them, con·

fignalion of the debt (hall be made in the hands of the.

judge.ordinary or bis c1erk, the goods muR be left wilh

the debtor ; if not, the mélrenger ought to adjudge and

deliver tbem over, at the apprifcd value, to the ufer

the diligence towuds ·his payment! And the debtor is

intitled to a copy of the warra'nt and executions, as a

voucher that the débt is diícharged in whole or in pm

by thegoods poinded.

13.

Mini(!ers may poind (or tbeir fiipends, upon one

apprifement ODthe ground of (he lands

and landlords

were a:lwa,s in ufe to poind fo, [or their renu. Apprife ·

ment o( ,he .goods at the market·crofs of tbe nexI roy.1

borough, or even of the next head·borollgh of (lewanry

or regality, though thefe juriCdiélions be aboli(hed, is de·

c1ared as fuffi cienl al if they were carried to the head·

borough of rhe (hire. Poinding, whethcr it be coofidered

as a fenlcnce,

as Ihe execution of a fenteoce, mull be

IO~

procr~cl