Arrestment upon a dependence may be loosed upon caution.
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The Laird of Aytoun being debtor to the late Justice-Clerk, and being charged to make payment, did suspend upon consignation; after which Mr Patrick getting an assignation from his father, and obtaining a consent from Aytoun, did crave, by a bill, that the clerks might be ordained to give him up the consigned money. Against which George Holme having compeared, did allege, That he, being creditor to the Justice-Clerk, did arrest the said sum in the Laird of Aytoun's hand before the consignation: Which arrestment, being a real diligence, did so affect the money, that Aytoun's consent was not sufficient to take away the benefit of of the arrestment. It was answered for Mr Patrick, That the Laird of Aytoun who did consign the money, as he might have paid the same, notwithstanding of the arrestment, and taken his hazard to have been made liable to the arrester in the action to make furthcoming, so it was in his power to pass from the consignation as being satisfied, in that which did make him suspend on consignation.—The Lords finding, That George Holme had arrested only upon a dependence; and that the debt was not constituted by any sentence; and that, before the same could be constituted against the Justice-Clerk's heirs, the consigned money would lie useless, and the event of the process might be uncertain: They did ordain the consigned money to be given up to Mr Patrick, he finding sufficient caution to refund the same, with the annualrent, after his receipt, as soon as George Holme should constitute his debt against the Justice-Clerk's heir; but, if the debt had been liquidate by a bond or decreet, they thought Aytoun's consent was not sufficient to give up the consigned money in prejudice of the arrestment, which was a real diligence.
