Scottish Court of Session Decisions

Subject_1 ARRESTMENT.
Subject_2 Loosing Arrestment.

Margaret Crichtoun, Relict of Thomas Moffat,
v.
Mr John Borthwick of Cruickstoun

Date: 18 July 1707
Case No. No 144.

An arrestment is effectually loosed, though the letters of loosing be not intimated to the arrester.

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Thomas Moffat having, as creditor to James Tweedie, in the sum of L. 342, arrested the like sum in the hands of Mr John Borthwick of Cruickstoun, and afterwards disponed the debt and diligence to Margaret Crichtoun, his spouse: She pursued a furthcoming, wherein Cruickstoun alleged, That he ought to be assoilzied, because he had paid conform to letters for loosing the arrestment produced.

Replied for the pursuer:—That if Cruickstoun had paid, he had paid unwarrantably, the letters of loosing never having been executed against the arrester: For the letters bear, ‘That intimation be made to the arrester, that the arrestment is loosed, and caution found,’ otherwise the arrestment to remain unloosed. The reason of this stile is, because, if the loosing be not intimated, the arrester cannot know from whom to seek his payment, nor how and when to do diligence against the cautioner, who medio tempore may prove insolvent.

Duplied for the defender:—1mo, Before the act 17th Ja. VI. 1617. (as appears by the narrative thereof) messengers were entrusted with the loosing of arrestments, taking caution, and intimating the same to the parties by tickets or schedules: But that course not being safe to the lieges, it was ordained by the said act, That all caution for loosing of arrestments be found in the books of Session, and received by the clerks before giving out the letters; yet no intimation or execution of the letters is required. For the arrester is secure by the caution found, and the letters under the signet are a publication thereof. 2do, It was not necessary to execute the letters of loosing the arrestment against the arrester, seeing they bear caution to be found; and the will of the letters of arrestment is only to secure the subject ay till caution be found; and the stile of the letters of loosing arrestment seems only to have been introduced as a warrant to certiorate the arrester not to proceed after he was secured by the caution found, of which he might be certiorated at the bill-chamber, and signet-office, which are public records patent to all the lieges: And for the sufficiency of the caution the clerks are liable.

Triplied for the pursuer:—That the act 1617, makes more for him than for the defender: In so far as it expressly requires the intimating the loosing of an arrestment to the arrester, which was also necessary before the said act, though through an abuse it had been omitted.

The Lords found the arrestment to have been effectually loosed; though the letters of loosing were not intimated to the arrester.

Fol. Dic. v. 1. p. 59. Forbes, p. 184. *** Dalrymple reports the same case thus:

Moffat, as creditor to James Tweedie, arrests in the hands of Mr John Borthwick; and Margaret Crichton, relict of the said Moffat, as his assignee, pursues a furthcoming, in which Borthwick, the defender, depones he was debtor the time of the arrestment, but had paid conform to letters of loosing arrestment; and, for instructing the quality of his oath, produced an extract of the said letters, bearing that caution had been found in the books of Session, whereupon the defender was in bona fide to make payment to Tweedie the debtor.

It was answered: That letters of loosing are not sufficient, unless the same had been executed against Moffat the arrester, personally, or at his dwelling-house, and thereby intimation made to him that the arrestment was loosed, and caution found; which the style of the will of letters loosing arrestment bears; which execution only could render the debtor in bona fide to pay.

It was replied: That letters of loosing need no execution after the 17th act of the Parliament 1617: By the narrative of which act, it appears, that messengers were antiently intrusted with the loosing of arrestments, and taking caution, and intimating the same to parties by tickets or schedules; which practice not being found safe for the lieges, it was thereby statute and ordained, that all caution in loosing of arrestments, should be found in the books of Council and Session, and the clerks of the bills to receive the same before giving out of letters of loosing: After which act, it is plain, that no intimation or execution of the letters are required; but by the caution found, the arrester is secure, and the letters under the signet are the publication thereof. And as to the style of letters of loosing, the same has been fixed before the said act of Parliament, and has continued since, without adverting to the effect of that act which rendered the foresaid execution useless; and, in practice, the same hath been neglected, as is well known, and may more clearly appear by the later style of the letters of arrestment, laid on upon depending processes, which only are loosable, and bear, “that the sums or goods belonging to the debtor should remain under sure fence and arrest, ay and while caution be found acted in the books of Council and Session;” which style is conform, and hath been adapted to the foresaid act of Parliament; though the style of letters of loosing hath continued more by inadvertency, than any good reason.

‘The Lords found the defence relevant and proven, that caution was found acted in the books of Session, and thereupon letters expede under the signet, conform to the said act of Parliament, without any necessity of further execution.’

Dalrymple, No 84. p. 106.