Scottish Court of Session Decisions

On 26th December 1883 Mrs Tait and William Donaldson raised in the Court of Session an action of poinding of the ground against Miss Barbara Douglas. Mrs Tait's title consisted of two several bonds and dispositions in security over Miss Douglas' property at Corstorphine, one of which was granted by Miss Douglas' father in 1871 for the sum of £100, the other having been granted by Miss Douglas herself in 1878 for the sum of a further £150. William Donaldson's title consisted of a bond and disposition in security granted over the same property by Miss Douglas in 1882 for the sum of £54. Miss Douglas paid £30 to account of Mrs Tait's debt, and the interest in that debt up to Martinmas 1883. She did not enter appearance in the action, and on the 15th January 1884 decree was obtained against her directing letters of poinding at the instance of the poinders to be issued and executed, and the same were accordingly obtained. Under these letters, in terms of the decree and letters, the moveable goods, gear, and effects belonging to Miss Douglas, situated on the ground of the subjects described in the said several bonds, and of which she was proprietor, were poinded in payment of the debts. The schedule of poinding was dated 1st February 1884. On the 11th of February the pursuers obtained the warrant of the Sheriff of the Lothians for the sale by public roup of the poinded effects.

On 14th February the usual statutory notice calling up the bonds and giving notice of sale of the subjects failing payment was given.

Miss Douglas on 22d February presented this note of suspension and interdict, the prayer of which was “to interdict, prohibit, and discharge the said respondents and each of them from proceeding or acting upon a warrant of sale, dated 11th February 1884, granted by the Sheriff of the Lothians at the instance of the respondents, the said Mrs Marion Brodie or Tait and William Donaldson, against the complainer, for the sale of certain goods, gear, and effects belonging to the complainer, and which were poinded by the said respondents in virtue of letters of poinding obtained by them under a decree in an action of poinding of the ground raised at their instance against the complainer.”

The complainer pleaded, inter alia—“The summons of poinding the ground and the proceedings following thereon are incompetent and inept in respect the same are at the instance of two pursuers having separate grounds of action.”

The Lord Ordinary ( Lee) pronounced this interlocutor:—“Finds that the poinding in question was irregular and incompetent: Thereupon suspends the proceedings complained of: Interdicts, prohibits, and discharges the respondents each of them as craved: Declares the interdict formerly granted perpetual, and decerns.”

“ Opinion.—The complainer objects to the sale of certain moveable effects belonging to her, and alleged to have been poinded by the respondents in virtue of letters of poinding the ground,

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dated the 15th, and signeted the 31st January, obtained by them under a decree of poinding of the ground of date 15th January, all in 1884. The execution of poinding bears date 1st February, and the warrant of sale is dated the 11th February.

It appears that one of the poinding creditors (Mrs Tait) is in right of two bonds and dispositions in security over the complainer's property at Corstorphine—the first granted by the com plainer's father in 1871 for £100; the second granted by the complainer herself in 1878 for £150. The other respondent (Mr Donaldson) holds a bond and disposition in security granted by the complainer in 1882 for £54. These securities are in the form provided by the Titles to Land Consolidation Act.

The first of the complainer's objections is, that the execution of poinding proceeds upon letters expede at the instance of two creditors holding separate grounds of debt. It is objected that such a combination of diligences is incompetent, and that the warrant for the letters being a decree of poinding the ground granted in absence and obtained at the instance of two pursuers having no common ground of action or community of interest, was inept.

The objection is not entirely technical, for the use of such diligences may give rise to different defences in the case of the different bondholders, and in this case it seems to me that the debtor had a legitimate interest to have the rights of the heritable creditors separately and distinctly brought forward. It is only on default in payment that the holder of a bond and disposition in security is entitled to enter into possession of the lands and uplift the rents (Titles to Land Consolidation Act 1868, sec. 119). It is admitted that the arrears of interest on Mrs Tait's bond had been paid before the execution of the poinding, and with regard to the principal sums in the several bonds, the statutory requisition or intimation of a demand for payment was not made until 14th February. With regard to arrears of interest on Mr Donaldson's bond, the allegation is that he had money in his hands more than sufficient to meet the whole interest due at Martinmas 1883, and this seems to be supported by the state of debt produced. The principal sum in this bond was not called up until the date of the requisition already mentioned. The respondents' allegations that there were certain conditions as to the time of payment not contained in the bonds, appear to me to be irrelevant in a question concerning the use of diligence.

Holding therefore that the complainer is entitled to have her first objection considered upon its merits, the question is whether such an accumulation of actions and diligences was competent.

The rule which I have always understood to be well settled is, that although persons aggrieved by the same act, or having a community of interest in the grounds of action, may prosecute in one suit their claims against a common defender, or against several defenders having a common interest in the action, it is not competent for them to do so, in the absence of any community of interest, on a common ground of action. I think that the rule was recognised in the case of Gibson v. Macqueen, 5 Macph. 113, and that it is specially applicable to a process such as poinding of the ground, the decree following on which is carried out without the necessity of any charge by simply expeding and executing the letters of poinding.

It may be said that in the case of Gibson v. Macqueen the objection was accentuated by the fact that only one sum of damages was concluded for, and that in the case of Harkis v. Mowat, 24 D. 701, two persons were allowed to sue for separate sums of damage. But in the case of Harkis v. Mowat both claims of damage arose out of the same act, and the rule laid down in the case of Gray v. Stewart, M. 11, 986, and followed in practice, was therefore in no degree infringed. In the present case the objection applies in like manner as in the case of Gibson v. Macqueen. For the conclusion of the action of poinding the ground is for one warrant of poinding at the instance of both pursuers, and that that warrant is to be executed by poinding the same moveable goods for payment (1) of the debt of Mrs Tait, and (2) of the debt of Mr Donaldson. Accordingly, the diligence was so executed. The whole of the complainer's moveable goods in the schedule and execution of poinding (appraised at a sum exceeding the amount of the debt alleged to be due to Donaldson) were poinded upon one warrant. So that if the poinding was objectionable at the instance of Mrs Tait, it was necessarily bad in toto. The impossibility of separating the goods poinded on behalf of Mr Donaldson from those poinded on behalf of Mrs Tait is just as obvious as the impossibility of apportioning between the two pursuers in the case of Gibson v. Macqueen the damages concluded for.

The only question, therefore, is, whether the pursuers of the diligence can shew any community of interest to justify their proceedings? and I am of opinion that they have failed to do so. No doubt they allege themselves to be creditors of the same debtor, and they hold securities over the same subjects. But this, as explained in Gibson v. Macqueen, is no ground for saying they have a community of interest. It is rather a source of conflict of interest. The rule of Gray v. Stewart expressly applies to the case of one debtor. It is intended, if it has any meaning, to save that debtor from the difficulty of contesting in one action a variety of claims. The pursuers in this case founded upon separate grounds of debt. They had no common ground of action. Each was independent of the other, and neither was entitled to use diligence unless his own individual rights justified such diligence.

I therefore hold that the respondents could not competently combine as they did, and that the execution of poinding was inept.

I may add that, in my view, there is nothing in the Esk Pollution Case— Duke of Buccleuch and Others v. Cowan and Others, 4 R. (H. L) 13—(which was not cited before me) at all conflicting with the rule which I think must be applied. The decision there was rested upon the ground that in the special circumstances the complaining proprietors had a community of interest in the purity of the river, and in preventing the particular kind of pollution which was alleged.

This is sufficient for the disposal of the case. But as other objections were argued before me, it is right that I should indicate my opinion upon them.

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1. It is pleaded that Mrs Tait had no title to sue the action of poinding the ground without concurrence of her husband. But it was not disputed at the debate that the bonds and dispositions in security on which she sued formed a part of the estate possessed by her, exclusive of the jus mariti and right of administration of her husband; and I think that on the authority of the case of Hay Primrose ( 12 D. 917), and other oases cited in Fraser on Husband and Wife, p. 813, her title to sue was sufficient. Indeed, I understood the objection to be ultimately given up.

2. It is pleaded that poinding of the ground is competent only in respect of arrears of interest, and is not competent for payment of the principal sum, or of interest to become due.”

The fact is that the poinding bears to be for non-payment in the case of each bond (1) of the principal sum, and (2) of the interest from Whit-sunday 1883, ‘and in all time coming during the not-payment.’ The interest due on Mrs Tait's debt is admitted to have been paid up to Martinmas 1883, prior to the execution of poinding; and I am of opinion that the poinding was bad, in so far as applicable to interest ‘in time coming,’ and as to which there had been no default.

With regard to the competency of poinding the ground for payment of the principal sum in a bond and disposition in security such as those produced, my opinion is that the objection stated in the abstract is untenable. The objection was founded upon dicta of Lord Stair and Mr Walter Ross, which I think are applicable to heritable creditors infeft only in an annual-rent. Where the principal is made a burden on the land these dicta have no application. Such poindings may be used upon all debiti fundi; and where the creditor holds a bond and disposition in security in the modern form, there is both law and practice for the use of such real diligence for the recovery of the principal as well as interest in case of non-payment (Duff's Feudal Rights, 273; Menzies' Lect., part III., cap. 4 sec. 2; Bell's Lect. on Cov., 2nd ed., 1158; Henderson v. Wallace, 2 Rettie; Scot. Herble. Securities Co., 3 Rettie, 333; and the Juridical Styles). Professor Menzies, in treating of the heritable bond, states in a few words the condition of the law on the subject. After explaining that the old heritable bond did not carry the property of the lands as a security for the principal sum, but merely charged the annual rent as a real burden, he says,’ As it is the interest only which forms a burden upon the land, the capital cannot be recovered by diligence against the tenants…. The deed may, however, be so framed as to embrace in the security the principal as well as the annual rent, and in that case the creditor would have the benefit of the same real diligence for recovery of the principal which he has for recovery of the annual rent. But the bond and disposition in security is the proper writ for charging both principal and interest upon the lands.

But while I think that there is no incompetency, in the abstract, in poinding the ground for the principal as well as for the interest due upon a bond and disposition in security in default of payment, I think that in the case of Mrs Tait's bond there was admittedly no ground for a poinding for payment of arrears of interest; and as regards the principal, that there had been no failure to make payment, seeing that the requisition for payment had not only not expired but had not been intimated.

I hesitate, however, to give judgment upon this ground, as it was not presented in argument, and is not pleaded. It is a very different thing from an objection in the abstract to the competency of poinding the ground for the principal sum in the bond and disposition in security.

3. The only other objection which I think it necessary to notice is that expressed in the 4th plea-in-law, viz., that it was incompetent to proceed upon the poinding until the lapse of fifteen days from the execution.

I think it impossible to hold the procedure upon such poindings to be regulated by the Personal Diligence Act. For it is well settled that these poindings are not personal but depend upon the infeftments of the creditors ( Bell v. Cadell, 10 Sh., 100, Stair, iv. 47, 24). The doctrine of Stair however is, not that fifteen days must elapse after the date of the execution, but that the letters of poinding cannot proceed ‘till 15 days after the decreet of poinding the ground, which are the days of law within which parties may satisfy or procure suspension.’ In this case the decree of poinding was on 15th January, and the letters were not expede until 31st January, and were not executed until 1st February. It is true that there was only one day between the date of expeding the letters and the date of the execution, and that there was, as usual, no charge on the decree of poinding. But the defenders called in the poinding had the legal days for procuring suspension; and my opinion is that this was all they were entitled to, and the objection is ill-founded. I know of no authority for the proposition that there must be fifteen days after the execution before a warrant of sale is applied for.

On the whole, however, and for the reasons stated, I think that the diligence was irregular, and that the complainer is entitled to suspension and interdict as craved, with expenses.”

The respondents reclaimed, and argued as follows:—Admitted that the Lord Ordinary was right in holding that there must be a community of interest or a common ground of action to enable two or more persons aggrieved by the same act to raise a joint action against a common defender. The proposition applied only to ordinary actions, and had no application in such an action as the present, which was a declaratory real action to assert a common interest in certain moveables on the ground in which both creditors have a common real right in order to division according to their respective rights— Hay v. Marshall, July 7, 1824 3 S. 223, March 12, 1826, 2 W. & S. 71; Campbell's Trustees v. Paul, January 13, 1835, 13 S. 237 (Lord Mackenzie, 234). 2. An examination of the cases cited by the Lord Ordinary showed that they were each decided on arbitrary grounds, and no rule could be drawn from them. It was simply a matter of legal etiquette and of what was convenient and becoming. No absolute nullity was involved in it, and at most only a possible defence. 3. If the objection was taken in time it might be obviated— Gray v. Stewart, June 5, 1741, M. 11,986, in which the Court allowed the pursuers to make election at whose instance the action should proceed, but here no appearance was made for the complainer,

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decree was passed, and she was therefore too late in bringing forward the objection in her suspension. Her argument as to the competency of the procedure, presented at this stage, was exactly the same as though in any ordinary action of debt the debtor had failed to appear, decree had been given and diligence used therein, and then he had come forward and challenged the proceedings as following on a nullity in procedure. The objection, then, did not apply to the category of actions to which poinding of the ground belonged, and in any case the complainer was too late in bringing it forward.

The complainer replied — It was clearly established by decided cases that two creditors holding separate grounds of debt could only combine their diligences against a common defender if they could show a common ground of action— Gibson v. Macqueen, December 5, 1866, 5 Macph. 113; Harkis v. Mowat, March 4, 1862, 24 D. 701; Gray v. Stewart, supra. Here the poinders could show none whatever. They had separate grounds of debt, each independent of the other, and the bonds did not run pari passu. The fact that they held securities over the same subjects was against the idea of community of interest. This objection, then, involved a nullity which rendered null the whole proceedings. Further, after decree had been given it was not competent to have the summons restricted so that the action should lie at the instance of one pursuer, the other going out—M'Glashan's Sheriff Court Practice, p. 150, section 827.

At advising—