Scottish Court of Session Decisions

George Bothwell sued Robert Ferguson for a sum of £16 in the Sheriff Court of Aberdeenshire, and got decree for a sum, including expenses, of £6, 6s. 10d.; on 13th December 1880 he charged Ferguson to make payment of this sum. On 22d January 1881 the sum was arrested in the hands of Ferguson on the dependence of an action at the instance of William Keith, who had or pretended to have a claim against Bothwell. This arrestment was intimated to Bothwell, who took no notice of it, but on 9th April caused an entire horse belonging to Ferguson to be poinded. On 22d April Ferguson raised a process of multiplepoinding in the Sheriff Court, and alleged that he was doubly distressed in consequence of the charge and poinding and of Keith's arrestment. Notwithstanding this process Bothwell caused the diligence at his instance to proceed, and on 9th May the horse was sold for £8.

Ferguson then raised this action for £100 of damages against Bothwell, averring that the defender had illegally sold the horse after he had been duly interpelled by the process of multiplepoinding. He also averred that the poinding was otherwise incompetently and irregularly executed, with the result that the horse had been sold for a sum greatly under its real value. The defender maintained that he was not bound to stop his diligence because of the multiplepoinding. He denied that there was any double distress, and further alleged that the arrestments were merely collusive, and had been used by Keith in consequence of a pretended claim in an action of which Ferguson was the real dominus.

The pursuer pleaded—“(1) The pursuer being lawfully interpelled from paying the sum due to the defender, the defender acted illegally in carrying out the warrants obtained by him in the knowledge of such legal interpellation.”

The Sheriff-Substitute ( Comrie Thomson) allowed a proof. He added this note to his interlocutor:—“The pursuer has not specified any irregularity in the procedure adopted by the defender in carrying out diligence under the decree which the latter had obtained against the former; but I am unable to disregard the allegation that the defender proceeded in disregard of the ex facie regular arrestment used in the pursuer's hands at the instance of a person claiming to be a creditor of the defender, and of the action of multiplepoinding. It may turn out that the defender's averments as to the use of that arrestment being a mere trick are well founded, and it may also be that even if there be damnum there is no injuria; but I am not at liberty to assume this.”

On appeal the Sheriff recalled this interlocutor, and dismissed the action as irrelevant, adding this note:—[ After stating the facts]—“This is an action of damages at Ferguson's instance, because he says that on 22d January he was interpelled from paying the debt by its being arrested

Page: 466↓

at the instance of one Keith. Bothwell replies that Keith and Ferguson are all one, and the arrestment was a trick to keep him out of his money, the action on which it was used having been afterwards dismissed as without foundation. Keith has thus no complaint, and assuming the bona fides of the arrestment, as without proof to the contrary must be done, the question as to Ferguson is whether he did enough for his own protection after receiving notice of the poinding. He appears to have brought a multiplepoindiug pleading that between the creditor and the arrester he was suffering double distress. But the case of Mitchell v. Strachan, 18th November 1869, 8 Macph. 154, decides that this was wrong. A single arrestment does not constitute double distress, and a multiplepoinding brought in such an event was described by the Judges as a ‘perfect abuse of the process,’ the arrestee's proper course being either to interdict the poinding or ‘to bring a suspension as of a threatened charge.’ Any other course would obviously lead to great inconvenience. The creditor has his diligence. He can do nothing to test the validity of the arrestment. It is either for the arrester or arrestee to stop him by some judicial act—which a simple arrestment certainly is not; and until he is so stopped he is entitled to assume that he is safe to proceed with the execution of his diligence. It follows that the pursuer is seeking damages for an act which he himself has negligently allowed, and for which therefore no damages are due. The action has accordingly been dismissed with costs.”

The pursuer appealed to the First Division of the Court of Session, and argued — There was here double distress, for the pursuer was interpelled by the arrestment from paying to the creditor. The sale was therefore illegal and the pursuer was entitled to damages.

Authorities— Mitchell v. Strachan, quoted in Sheriff's note; Blair's Trustees v. Blair, 12th Dec. 1863, 2 Macph. 284; Scott v. Drysdale, 22d May 1827, 5 S. 643; Miller v. Ure, 23d June 1838, 16 S. 1204; Middleton v. Mitchell, 21st Dec. 1843, 6 D. 316; Clydesdale Bank v. Russell & Johnston, 1st June 1859, 21 D. 886.

Argued for defender—The diligence was good and regular, and a multiplepoinding was not the proper way to stop it. The proper remedy of an arrestee in such circumstances was to have the matter discussed in a suspension— Connell's Trustees v. Chalk, 5 R. 735; Bell's Comm., 5th ed., vol. ii. 299, and 7th ed. 278; 2 Shand's Practice, p. 586.