should be sent to his agent or himself, when possible, personally, that the arrestment has been used. When knowledge of the diligence is not brought home to the debtor abroad, its only use is to regulate preferences between competing creditors (a). In the case of companies and mercantile firms that frequently have foreign correspondents, these remarks may be found serviceable.

causa.

practice re

Arrestment jurisdictionis fundanda causa is frequently resorted Arrestment jurisdictionis to as a means of bringing under the authority of the Scottish fundanda courts, English or foreign companies and firms. Any piece of property, however small, belonging to the company, will, when arrested within the territory of the Court, found jurisdiction against it (b). It must, however, be the company property. Arrestment of a partner's separate estate would not have this effect (c). On the other hand, arrestment of a foreign partner's share in the hands of a company in Scotland will found jurisdiction against the partner (d). Arrestment of deposits by allottees of shares in a Scotch bank will found jurisdiction against a foreign company (e). These are the leading principles which apply in relation to this Uncertainty of mode of founding jurisdiction; but it must be admitted that the garding. law of the case is far from having obtained that precision which is to be desired, the courts at some periods being apparently inclined to regard it with favour, at others to confine it within rigorous limits. Some of the more leading cases may here be mentioned. In Douglas v. Jones (ƒ), already referred to, arrestments used by the creditor of a foreign partner of a company in Scotland, in their hands, and over goods belonging to them, was held to create jurisdiction over the foreign partner. And although, in a preliminary defence stated by him on alleged want of jurisdiction, he offered to prove that he had no claim on the company funds, the investigation was refused; and it was held to be sufficient to found jurisdiction against him, that he did not deny being a partner of the Scotch company, whose funds had been attached. The action,

(a) See, on this subject, Syme v. Anderson, 1824, 3 S. 372; Leslie v. Lady Ashburton, 1827, 6 S. 165.

(b) Lindsay v. North-Western Ra. Co., 1855, 18 D. 62; aff. 1858, 20 D. (H. L.) 4, 3 Macq. 99.

(c) Gray v. Polhill and Others, 1847,

9 D. 1146. See comments by Lord
Ordinary on defender's pleas.

(d) Douglas v. Jones, 1831, 9 S. 856,
and as referred to by Lord President in
Lindsay v. N.-W. Ra. Co., 22 D. 585.
(e) Gray v. Polhill, 1847, 9 D. 1146.
(f) Supra.

Ships.

Miscellaneous

cases.

however, to found jurisdiction in which the arrestments were used, was connected with company affairs, in which the defender had taken a prominent part.

In Duffus and Others v. Mackay and Others (a), 1857, on the ground that a certificate of registry is, under 17 and 18 Vict. c. 104, prima facie evidence of title to a ship, arrestments ad fund. juris., used by creditors of the former owners, were recalled without caution, though the arresters averred and offered to prove that the transfer to the registered owners was fraudulent and collusive. Again, in Shatly v. Robinson and Niven, 1861 (b), on the opinion of a Prussian lawyer, that by execution of a bill of sale the property in a ship is transferred without any registration of the bill of sale, arrestment of a Prussian ship, used on 5th October ad fund. juris. against a party who had been owner, but who had executed a bill of sale on 4th September while the vessel was at sea, was recalled. In Jones v. Samuel, 1862 (c), in an action by the owners of a ship, the leading object of which was to obtain delivery of it from a foreign mortgagee, who was in possession under his mortgage, it was held that the arrestment of a ship juris. fund. causa is not sufficient to found jurisdiction against a mortgagee.

In Galloway v. Liddell and Reid, an action was raised against an English company and the individual partners thereof for a company debt, which one of the partners bound himself as an individual to pay. Jurisdiction had been founded by arrestment of that partner's effects. On the dependence, arrestment of the same effects was again used, when, decree having been obtained against the company and the individual partners, it was held that the pursuer had obtained a preference over the creditors of the individual partner who had subsequently arrested (d). In Lindsay v. The London and North-Western Ra. Co., 1860 (e), jurisdiction was held to have been founded against an English railway company by arrestment, 1st, of stock of a Scotch railway company belonging to the English company, but registered in the Scotch company's books in name of certain shareholders of the English company, known to have been nominated for the purpose of holding stock for the com

pany, and of dividends on the stock; 2d, of carriages and other plant of the English company on the Scotch company's line; and 3d, of profits of joint traffic due by the Scotch to the English company; all the arrestments having been laid on in the hands of the Scotch company. The opinions in this case are valuable, as containing a minute investigation of the whole law of Scotland upon this subject.

undetermined.

The question has never been determined, whether a judgment Questions pronounced in an action founded on arrestment can be put to execution beyond the value of the goods arrested ad fundandam jurisdictionem (a); though opinions in favour of the affirmative have been expressed (b).

It also remains to be determined whether, after an action has been raised on arrestment to found jurisdiction, another arrestment has to be used on the dependence to attach the same subjects, so as to found a furthcoming when decree has been obtained, or whether the original arrestment operates both for jurisdiction and in security. In White v. Spottiswoode, 1846 (c), an opinion was stated from the bench, obiter, which would seem to countenance the latter view; but until the question has been authoritatively determined, the safe course is to adhere to the long-established practice of laying on a new arrestment on the dependence.

PROCEDURE IN ARRESTMENTS.

In arrestments for execution, the warrants are-1. Letters of Warrants. arrestment from the Bill Chamber upon a liquid ground of debt which does not require to be registered; 2. Letters of horning and poinding which contain a warrant to arrest; 3. The warrant appended to the extract decree, in terms of 1 and 2 Vict. c. 114. No charge is requisite to precede arrestment, as in poinding and imprisonment (d).

For arrestment in security on the dependence of an action, the summons even before execution is the ground; and the warrant is either separate letters of arrestment, or a warrant contained in the

(a) Lindsay v. London and N.-W. Ra. Co., 1858, 20 D. (H. of L.) 4, 3 Macq. 99.

(b) Same case, 1860, 22 D. 571.

(c) 8 D. 952.

(d) Weir v. Falconer, 1814, 17 F. C. 540.

Mode of execution.

Great exact

summons itself to that effect. When a litigation is going on abroad, a summons may be raised in this country for the avowed purpose of allowing arrestment on the dependence to be used against funds in Scotland (a). This procedure will often be found advantageous in the case of English firms, when part of the funds of their debtors is situate in this country. For arrestments in security when the debtor is vergens ad inopiam, the warrant is letters of arrestment from the Bill Chamber. Arrestments ad jurisdictionem fundandam also proceed upon separate letters of arrestment.

The diligence is executed upon the arrestee in the same way as upon the debtor in the case of poindings, and the serving officer returns his execution with the same formalities. In the case of ships, the service is not personal, but by affixing the copy to the mainmast and chalking the Royal initials.

Great care is necessary in this as in any other kind of diligence, ness requisite. that the warrants, execution, etc., are regular and exact. When the company arrests, it appears in all the steps of the diligence, in the same way as in the summons, decree, or liquid document of debt in relation to which the diligence is used. If the company is the common debtor, it ought in like manner to appear throughout all the writs as it is designed in the document, whatever that may be, on which the arrestment proceeds. If, again, the company be intended to be the arrestee, the general rule is, that that form of designation should be adopted which would be valid if it were to be called as defender in an action; and when the arrestment is to be laid on in the hands of the company debtors, they will appear in the writs, and service will be made on them as if they were defenders.

Illustrations.

The following cases may be cited as illustrative of the practice in this respect. An arrestment executed neither personally nor at the dwelling-house of the arrestee, but at the counting-house of a company of which he was a member, was held to be inept (b). A summons containing warrant to arrest was raised in name of A. B., mason in E., and C. D., mason in Bridgend of E., under the firm of B. and D., masons and quarriers in E.; and an arrestment was used on the dependence of the summons, in the execution of which it was set forth as at the instance of A. B. and C. D., masons and (a) Fordyce v. Bridges, 1842, 4 D.

1334.

(b) Sharp, Fairlie, and Co. v. Garden, 1822, 1 S. 314.

6

quarriers in E. The Court held that the discrepancy was not such as to vitiate the arrestment (a). In another case, when letters of arrestment had been used on the dependence, containing the formal words because the Lords have seen the dependence' partly written on an erasure, the diligence was found inept (b). In Muirhead v. Stevenson, 1848, arrestments which had been used upon a decreearbitral were recalled, in respect the submission was entered into by the factor for the proprietor, while the decree was directed against the proprietor himself, and that the decree only, and not the submission, had been produced in the Bill Chamber (c).

FURTHCOMING.

Arrestment, which is an inchoate diligence, is completed by furthcoming. This is an action in which the decree of a competent court is sought to make the fund attached by the arrestment forthcoming to the arrester. When that which is attached is money, the decree ordains payment to be made to the arrester; if goods, it ordains a public sale and payment of the price to the arrester (d). All kinds of arrestments may be followed by the action of furthcoming, except that ad fundandam jurisdictionem, about which there still remains a doubt (e). The arresting creditor must make both the arrestee and the common debtor defenders. In whichever of these characters the company appears, it must be designed' in the same way as if it appeared as pursuer or defender in an ordinary action, and in the way in which it has appeared in the previous proceedings throughout (ƒ). See, as examples of companies and firms appearing in furthcomings, the cases noted below (ƒ).

(a) Mitchelly.Hepburn,1830,8S.319. (b) Forbes v. Gallie, 1847, 9 D. 806. See also Wight v. Wight, 1822, 1 S. 395; Scott v. Fisher, 1825, 4 S. 261; Thomson v. Gavin, 1830, 8 S. 921.

(c) 10 D. 748.

(d) Stevenson, 1684, M. 5405; Stair iii. 1, 38; Sinclair v. Staples, 1860, 22 D., per Lord Justice-Clerk, 600; Muir head v. Corrie, 1735, M. 687.

(e) See p. 637.

(f) Wilson and Co. v. Cuninghame and Co., 1808, 2 Bell 67, n. 4; Stirling and Robertson v. Stirling and Sons, 1821, 1 S. 218; Wallace, Hamilton, and Co. v. Campbell, 1822, 1 S. 471; Anderson and Childs v. Pott and M'Millan, 1829, 7 S. 499; Houston v. Aberdeen Town and County Bank, 1849, 11 D. 1490.