Scottish Court of Session Decisions

This was an action of multiplepoinding raised in name of the North British Railway Company by Robert White, a creditor of a person named Charles Seton, for the purpose of having the right to a quantity of furniture, arrested by him and by others of Seton's creditors in the hands of the railway company, determined.

David R. Roberts, as previously reported, though not called in the multiplepoinding, appeared, and objected to the competency of the action on the ground that the furniture was his, and could not competently be arrested for a debt of Seton's, but the Second Division on 4th November 1881 ( ante, vol. xix. p. 59) in an appeal at his instance sustained the competency of the process and remitted to the Sheriff to proceed with the cause. Roberts now claimed the whole furniture forming the fund in medio, averring that on the 19th of March 1881 he had bought the whole of it at Dublin from Seton, who was his brother-in-law, at the price of £135, 10s., and that Seton had granted him a receipt for £135 as the price of the whole of it, which receipt declared that it was sold to him with full power to remove it when it suited him.

Claims were also lodged by Robert White, the real raiser, David W. Wilson, William Massie, and other creditors of Seton. These claimants had used arrestments on the said furniture in the hands of the nominal raisers. They alleged that he was the real owner of the furniture. They denied that any bona fide transaction was entered into between Seton, the common debtor, and Roberts. They averred that, on the contrary, Seton was at the date of the alleged sale insolvent and notour bankrupt, and was fleeing from the diligence of his creditors; that Roberts was his brother-in-law, and a conjunct and confident person with him; and that the pretended sale was a collusive device resorted to for the purpose of defeating their diligence.

The Sheriff-Substitute ( Hamilton) allowed the claimants other than Roberts a proof of their respective averments, and to Roberts a conjunct probation.

Thereafter on 4th August 1882 he found “that the defender David R. Roberts has failed to instruct a sufficient legal title to the furniture in question: Therefore repels his claim, and ranks and prefers the other claimants pari passu upon the fund in medio, in terms of their claims; remits to the Sheriff-Clerk-Depute to make out a scheme of division: Finds Roberts liable to the other claimants in expenses, including those of the appeal to the Court of Session” [for which the interlocutor of the Second Division had given him power to decern].

He added this note (from which and from the opinion of the Lord Justice-Clerk the import of the proof clearly appears):—“Roberts claims the furniture as his property in virtue of an alleged sale to him by the common debtor, the terms of which he says are contained in the receipt. At the date when this receipt bears to have been granted (19th March 1881), the common debtor, who is Roberts’ brother-in-law, was being pressed on all sides by his creditors, and was notoriously insolvent. The transaction, therefore, is one struck at by the Statute 1621, c. 18, and it was incumbent on Roberts to prove, by clear and independent evidence, that the price said to have been given for the furniture was ‘really paid.’ This he has failed to do, his own oath and the production of his bank pass book (which really proves nothing) being quite insufficient for the purpose.

“Upon this ground alone—the failure to satisfy the requirements of the Statute of 1621—Roberts' claim must be repelled. But there are other circumstances, either admitted or proved, which tend to throw suspicion upon the transaction between him and the common debtor:—(1) The receipt alone referred to is vitiated as regards the date upon the stamp. (2) Though the furniture is said to have been sold to Roberts on 19th March 1881, it remained in the possession of the common debtor, or at least of his wife and family, until the 2d of May following, and there is no proof of delivery to Roberts even then. No doubt the packages delivered to the railway company on 2d May bore the address ‘Roberts, Dublin,’ but, in the first place, this does not prove that the furniture really belonged to him, and, in the second place, the common debtor also was in Dublin at that time, and there is evidence that address labels bearing his name were originally put upon the furniture, but were changed for others when it was seen that the removal was being watched. (3) How can it be said that this was a bona fide sale when it is admitted that the furniture had previously been assigned to other parties?

Roberts' claim being out of the way, the fund in medio falls to be divided among the other claimants. At the date of the arrestments used by them the common debtor was notour bankrupt.”

Roberts appealed to the Court of Session, and argued—This was a case where the claimant's oath, fortifying the acknowledgment of the seller, was sufficient to rebut any presumption arising against the transaction under the Statute 1621, c. 18; Bells' Com. (M'Laren's ed.), ii. 179, footnote.

At advising—