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Scottish Court of Session Decisions >>
Warden v Berry. [1675] Mor 796 (20 November 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor0200796-136.html Cite as:
[1675] Mor 796
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The Lords found, That an arrestment upon a decreet, after it was suspended, may be loosed upon caution. Done upon a bill. See No 131. p. 793.
Clerk, Hamilton.
Fol. Dic. v. 1. p. 59. Dirleton, No 300. p. 147.*** Gosford observes the same case thus:
There being a new query made to the Lords, by the Ordinary upon the bills: If an arrestment upon a decreet, which was suspended, could be loosed, upon caution? It was debated, That, by our law and custom, no arrestment upon a decree could be loosed; but, on the contrary, it was urged, That the decreet being suspended upon caution, ought not to have that same force as a standing decreet, which was never suspended; seeing the suspension did not only suspend an execution, but make the subject of the decreet to be again called in question; and the creditor being sufficiently secured by caution, it was against reason, that, by an arrestment, which was a real diligence, he should be incapacitated to make use of his goods or debts, and so have nothing to live upon.——The Lords did find, that the arrestment ought to be loosed upon sufficient caution, our law and custom being only, where decreets were standing unsuspended; but the reasons thereof could not be extended where decreets were suspended; but yet they were all of opinion, that inhibitions might be truly served upon decreet standing suspended.
