EDWARD PATERSON v DUNCAN COWAN (Court of Session)

Cowan pleaded, in defence—1 st , That the arrestments used in his hands were effectually loosed by the executions of loosing already mentioned; and, 2 d , That, as no process had been insisted in on the arrestments for more than five years after the date of the sheriff's decree, they fell under the prescription of the act 1669, c. 9.

The case came before Lord Mackenzie (Ordinary) who took it to report on informations, in which the pursuer pleaded —The letters of loosing, dated on the 26th February 1814, were obtained on caution that the goods or debt arrested on the 30th December preceding should be furthcoming.

They, therefore, could give no valid warrant for loosing subsequent arrestments used after their date, and in which no caution had been found. The words of the will appear to be inaccurate; but they must be interpreted by the narrative on which the will proceeds, which bears special reference to the arrestments already used, and that caution had been found to make the goods thus attached by it furthcoming.

The Court was unanimously of opinion that the first defence was well founded. The defender could not here be said to have paid the debt spreto mandato , or to have committed a breach of arrestment. The executions being served on him by a proper messenger, the arrestments were effectually loosed; and he was not bound to look at the warrant, which, besides, in express words, authorised the loosing.

The style of the will was certainly not what it ought to be; and the Society of Writers to the Signet had acted properly in endeavouring, in so far as was in their power, to prevent the recurrence of such a case as this in future. It would probably be right to pass an act of sederunt on the subject. But, in the present instance, the messengers had made use of the common and regular style authorised by the uniform practice at the time at which the letters of loosing were obtained.