James Hardie v. George Liddel Merchant in Newcastle
Date: 4 January 1759 Case No. No 43.
Arrestment on a border-warrant, founds a jurisdiction to the Court of Session.
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James Hardie applied to the Sheriff of Roxburgh upon the 21st February 1758, and obtained a border-warrant, authorising him, in common form, “to arrest the person of George Liddel until he should find caution judicio sisti et judicatum solvi, and failing of his person, all and sundry his goods, gear, and debts, to remain under sure fence and arrestment ay and while caution be found acted to the effect foresaid.”
Pursuant to this warrant, Hardie used arrestment in the hands of certain persons residing in Kelso, as debtors to Liddel, and then executed a summons at the market-cross of Edinburgh, pier and shore of Leith, against Liddel, concluding against him personally for payment of a debt of L. 18. In this summons he did not libel upon the warrant.
Liddel appeared, and pleaded, 1mo, That as the warrant was not libelled on, it could give no support to the suit.
2do, That the effect of such warrant could only be, as the words of it bear, to detain the person, goods or effects, of the foreigner, till he should prorogate the jurisdiction by finding caution; but that if he chose to lie in jail, orto abandon his goods, nothing further could be done. And if this were not the rule, it would be easy to found a jurisdiction, and obtain a decreet against a stranger personally for payment, though he had no effects here, he only using arrestment in the hands of persons as debtors to him, who really owed him nothing.
3tio, That border-warrants cannot be granted for every sort of debt, like arrestments against strangers, proceeding from the Court of Session; because they resemble acts of warding, which can be issued for securing tavern and hostlery bills only.
4to, An arrestment by the authority of a Sheriff cannot be the foundation of a suit before the Court of Session.
Answered, 1mo, The effect of the arrestment on a border-warrant is to fix or detain in this country the effects of a stranger; the consequence of which is, to subject him to the jurisdiction of the Courts here, as much as if he had a land estate; and therefore he may be sued in the same manner as a native.
2do, There is no necessity, in order to found the jurisdiction, that the stranger should find caution; for, by fixing his goods within the territory, he is immediately subjected to answer; and the alternative of caution expressed in the warrant, is in favour of the stranger, that he may relieve his effects, if he pleases, by finding security. Those who have no effects here, cannot be thus subjected; for if debts, as in this case, are arrested, the Court will only decern in a furthcoming against the arrestees, after ascertaining the claim against the stranger, to that particular effect; and if the arrestees should owe nothing, the proceedings would be ineffectual.
3tio, No authorities are quoted to prove, that border-warrants can be issued for securing tavern and hostlery bills only. The universal practice has been, to grant them for every sort of debt; and it would be impossible to apply to the Court of Session for warrants of this sort without losing the opportunity of using them.
4to, An arrestment by authority of the Sheriff, as it has the effect to fix and detain the stranger or his effects in Scotland, must establish the jurisdiction of the Supreme Court of Scotland, in the same manner as it establishes the jurisdiction of the Sheriff himself.
‘The Lords found, That the arrestment on the Sheriff's warrant founded a jurisdiction to the Court of Session; and remitted to the Lord Ordinary to proceed accordingly.’
Act. P. Murray.Alt. H. Dalrymple.
Fol. Dic. v. 3. p. 240. Fac. Col. No 155. p. 276.
