Found in conformity with the above. The rebel had been before decerned against.
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The Bailies being pursued for not taking the rebel denounced, they being charged by the creditor by letters of caption to that effect; and the Bailies alleging, That no process ought to be granted against them, seeing the rebel was not summoned to the pursuit, who might allege payment, or propone some other lawful defence, which might liberate the magistrate, as in actions to make arrested goods furthcoming, where the principal party debtor is ever summoned; this allegeance was repelled, and no necessity found to summon the rebel in this or the like pursuit, where the magistrate is convened ex sua culpa, the rebel being decerned of before; and this pursuit being moved against the Bailie for his disobedience, wherein the principal debtor had no interest; whereas in actions to make arrested goods furthcoming, the principal party is necessary to be called, because it tends directly to constitute one first to be his debtor, and next that debtor to pay again that debt to the creditor pursuer, whereby he is a necessary party, from whom in effect payment is sought, and his gear desired to be taken from him. And upon the last of June it was found, That the Bailie not being powerful to take the rebel at the time of the charge, the Bailie being then single, and the rebel well accompanied, and escaping thereafter, before the Bailie got assistance, that the Bailie ought not to be answerable.
Act. Gibson.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 1. p. 134. Durie, p. 448.
