Arrestment found effectually loosed on caution, though the letters of loosing were not intimated to the arrester. See No 144. p. 798.
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Bannerman having arrested certain sums in the hands of James Salmon, due by him to her debtor, obtained decreet of furthcoming. Salmon, in a suspension, pleaded, That he had lawfully paid the debt, for that the arrestment in his hands had been loosed upon caution.
Answered: Intimation of loosing the arrestment had not been made to the arrester; therefore the payment unwarranted: For that, Imo, The will of letters of loosing arrestments uniformly is, that the executor thereof intimate the loosing of the arrestment to the arrester, and deliver to him a copy containing the day of loosing of the arrestment, witnesses present thereat, and cautioner found therein; otherwise that the arrestment stand and remain unloosed.
2do, This seems to be agreeable to reason, because the cautioner, though good at the time of finding caution, may become insolvent, before the arrester knows that the arrestment was loosed, or who is cautioner, so as to have an opportunity to prosecute him.
Replied for Salmon the arrestee: Such intimation is not required by the act 1617. Ja. VI. parl. 22. cap. 17. The danger pretended is imaginary, seeing that act of Parliament provides all caution to be found to the clerk of the bills, who is liable for the sufficiency of the cautioner. Further, the will of letters of arrestment is only to secure the subject till caution be found. Of this the arrester may be certiorated at the Bill-chamber, which is a place of record, patent to all the lieges. Before the act 1617, when caution was found to a messenger only, intimation was necessary; and though now no longer so, yet the style of the letters continues the same: This point was decided in a case observed by Forbes, l8th July 1707, Crichton against Borthwick, No 144. p. 798.
The Lord Ordinary sustained the reason of suspension; and a reclaiming petition being offered.
‘The Lords refused the same, and adhered.’
For Bannerman, David, Græme.
Fac. Col. No 83. p. 124.
