Scottish Court of Session Decisions

John Park, the incoming tenant, and Mr and Mrs Watson, outgoing tenants, of the farm of Tillykeira, Lonmay, entered into the following agreement:—“It is agreed that the incoming tenant shall duly harvest the growing grain crop of 1873, now in the ground, and that the quantity of the same shall be estimated by proving from the stock, by men mutually chosen, who will have power to allow the incoming tenant a sufficient remuneration for harvesting, to be deducted from the price: It is further agreed that the incoming tenant pay over the price of the said crop to the proprietor, Mr Milne of Craigellie, or his factor, say 15s. per quarter to account at Martinmas 1873, and the rest when the fiars are struck; the said proprietor or his factor being bound to pay over the same to the outgoing tenants above-named, after deducting the rent due for crop 1873.” The sum payable was £140, and this was arrested in the hands of Park, the nominal raiser. Mr Milne, the landlord of the farm, and real raiser, raised an action of multiplepoinding, which was defended by the arrester Cruickshank, on the ground that there was no double distress. The Sheriff-Substitute sustained this plea, and, on appeal, the Sheriff pronounced the following interlocutor:—

“ Edinburgh, 2 d July 1874.—The Sheriff having considered the Reclaiming Petition for the real raiser in support of his appeal against the interlocutor of 8th May last, with the answers thereto, record, and whole process, dismisses the appeal; affirms the interlocutor appealed against, and decerns, but varies the finding as to expenses as follows,—Finds no expenses due to or by the arrester Cruickshank, but finds the other claimants entitled to expenses from the real raiser, of which allows an account to be given in, and remits the same, when lodged, to the auditor for taxation.

Note.—The Sheriff regrets to be obliged to throw out this action on a technical ground, but it is impossible to arrest the objection stated to the competency of the process by the claimants A B Watson and Mrs Watson. In 1873 these persons were leaving the farm of Tillykeira. The crop on the lands was their property, and by agreement, dated 5th August 1873, they assigned it over to Park, the incoming tenant, on condition that he should pay the value thereof to the proprietor, Mr Milne, or his factor, who again was taken bound to pay over the same to the granters of the deed, after deducting the rent due for crop 1873. Mr Park thus held the crop as trustee for the landlord, and the subsequent arrestment used in his hands by Cruickshank, as a creditor of the

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Watsons, attached nothing. Nor does the circumstance that the landlord, after getting the money and paying himself, will hold the reversion for behoof of the Watsons, or any person in their right, constitute double distress. In no view, therefore, is there anything to warrant a multiplepoinding, and the judgment of the Sheriff-Substitute dismissing the action is right. No expenses have been given to the arrester, because his arrestment, althongh obliging the real raiser to call him as a party, is utterly inept; and, properly speaking, he has no locus standi in the case at all.”

Cruickshank appealed.

Authorities— Scott v. Drysdale, May 22, 1827, 5 S. 689; M'Target v. M'Target, May 12, 1829, 7 S. 591; Miller v. Ure, June 23, 1838, 16 S. 1204.

At advising—