Arrestments and citations on furthcoming, allowed to be executed at the market cross of Edinburgh and pier and shore of Leith, against persons dwelling in shires to which there was no tutus accessus.
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Ashurt, and his Factor, having offered a petition to the Lords; showing, that he had raised horning, containing arrestment, against one Congalton his debtor; which Congalton is engaged in the present rebellion, as are also several of his debtors, at the least, severals of the said debtors have their residence be-north Forth, in the shires which are now in the power of the rebels, to which there is no tutus accessus to arrest in their hands, or cite them in furthcomings thereupon; and therefore desiring special warrant to arrest at the cross of Edinburgh, as being communis patria, and nearest to Fife, which, and the more nothern counties, are in the enemies power; and likewise warrant to arrest at the pier and shore of Leith, and that citations in furthcoming might proceed in the same manner; as also desired, that the Lords would declare, that the said arrestments and citations should be as effectual as if the same had been personal, or at the parties dwelling-houses.
There being no contradiction, the Lords did consider and reasoned upon the bill the more fully; and it was observed, that the only law allowing citations against parties within Scotland, otherwise than personally, or at the party's dwelling-house, is the 66th act, Parliament 11th, James VI. which provides, that all warnings or executions in the King's causes, ubi non patet tutus accessus, be made at the market cross of the head burghs of the next shires, which can be no preparative in this case; as also, that if this were granted, the like would be demanded in the case of hornings, inhibitions, adjudications, and all other diligences, some of which have penal consequences; and further, that persons in whose hands arrestments were craved might pay bona fide, without having the means afforded to know of any such diligence. But, on the other hand, it was argued, that the Lords had been in use to allow citations against parties at the adjacent market crosses, where there was not tutus accessus, and likewise in case the parties to be cited were vagrant persons, having no certain domicile; as was lately done in the case of Rob Roy, upon which several diligences, real and personal, have proceeded; which the Lords were sufficiently authorised to do by the institution of the College of Justice, whereby the Lords were commanded to conclude upon rules and statutes to be kept in their order of proceeding. And, as to the inconveniency to the parties in whose hands the arrestments might be made, and furthcomings raised thereupon, the Lords were not at present to determine how far the bona fides of such debtors might operate their exoneration; that would be competent to be pleaded in the actions and diligences to follow. At present, the Lords were only to authorise arrestments to be used, and furthcomings raised in the manner desired, to the effect that the user of such arrestments might have the preference to co creditors using posterior diligence, so long as the subject arrested was in medio; but they were nowise to determine upon the defences that might be competent to the debtor in case of payment bona fide, or any other defence. Neither did any of the Lords incline to declare what should be the effect of such diligence, but only to give special warrant for the using of the same. And it was thought more safe and reasonable to grant arrestment than any other diligence, because the effect of the arrestment was only to stop payment to the common debtor; and that the arrester might be put in his place by the furthcoming. There might indeed be greater questions in the case of horning, where the effect is penal, if denunciation follow; yet, even in that case, denunciations are oft times allowed to be a ground of caption, when no escheat or other penal casuality follows upon it.
‘The Lords allowed arrestment and citation on furthcomings to proceed as desired; the petitioner first condescending upon the persons in whose hands he desired the arrestments to be laid, that the Lords might be satisfied, by sufficient documents or their proper knowledge, that these persons did reside in shires, to which there was not tutus accessus.’
Fol. Dic. v. 1. p. 260. Dalrymple, No 152. p. 211.
