Scottish Court of Session Decisions

James Kent, contractor, Coatbridge, on the dependence of an action raised by him in the Sheriff Court at Airdrie on 25th April 1892 against Alexander Gillon, house proprietor, Coatbridge, used arrestments in the hands of certain persons so as to attach the rents due by them to the said Alexander Gillon.

In May 1892 John Brand, coalmaster, Uddingston, presented a petition to the Sheriff Court at Airdrie, in which he called Kent as defender, to have these arrestments loosed, on the ground that the houses to which the rents applied belonged to him by virtue of an absolute disposition granted in his favour by Alexander Gillon dated 20th June and recorded 21st December 1891.

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The pursuer pleaded—“(1) The pursuer being heritably vested and seised in the said subjects by disposition containing assignation to rents duly recorded, is legally entitled to the said arrested rents— Scottish Heritable Security Company v. Allan Campbell & Company, January 14, 1876. (2) As the arrestments complained of prevent the said tenants from paying their rents to the pursuer, who is in right thereof, the same should be recalled, and the defender found liable in expenses.”

The defender pleaded—“(1) This present application is incompetent, and should be dismissed. (2) No title to sue.”

Upon 16th July 1892 the Sheriff-Substitute ( Mair) pronounced the following interlocutor:—… “Finds in law that the pursuer, being heritably vested and seised in the said subjects by the disposition before referred to, containing assignation to rents, is entitled to the said arrested rents, and that he has a title to sue for the recal of the said arrestments: … Therefore recals the arrestments in terms of the prayer of the petition: Finds that the rents due and payable by the parties respectively named in the petition are due and payable by them to the pursuer, &c.

“ Note.—It was pleaded for the defender that the petition for the recal of the arrestments was incompetent, being at the instance not of the party against whom the arrestments were used, but of a third party, and that the proper forum to deal with such a petition was the Court of Session. I cannot give effect to this plea, (1st) because the arrestments were used on the dependence of an action in the Sheriff Court; and (2nd) because, being so used, the Sheriff has, in my opinion, jurisdiction to deal with the arrested funds in an application at the instance of any party claiming right to them.

On the merits of the petition for the recal of the arrestments I entertain no doubt. The pursuer's title to the rents arrested speaks for itself. The disposition in favour of the pursuer is absolute, and contains an assignation to the rents. That disposition was duly recorded in the register of sasines, and the registration of the disposition operated as a public intimation, and completed the pursuer's title to the properties and rents. It is said, however, that the disposition was granted in security merely, and that the radical right to the properties remained in Mr Gillon, the disponer. Assuming that it was, the right to uplift the rents was nevertheless in the pursuer, the disponee. These rents belong to the pursuer in virtue of the disposition, and it is, in my opinion, jus tertii of the defender to attempt to set it aside ope exceptionis in the present action.” …

The defender appealed to the Court of Session, and argued—1. The petitioner had no title to sue. If the subjects were his, their rents did not fall under the arrestments used in the hands of Gillon's tenants. 2. The Sheriff had no power to entertain a petition for the recal of arrestments unless presented by the common debtor—Personal Diligence (Scotland) Act 1838 (1 and 2 Vict. c. 114), sec. 21. 3. This was really an attempt under a petition for recal to try the validity of the arrestments, which was incompetent— Vincent v. Chalmers & Company's Trustee, November 2, 1877, 5 R. 43.

Argued for the respondent—1. He had a real interest, as the tenants might not feel safe to pay to him standing the arrestments. 2. The 21st section of the Personal Diligence Act did not limit the right of applying for recal of arrestments to the common debtor. It was only right that anyone aggrieved should present such a petition. 3. The case of Vincent applied where a proof was necessary, but here the petitioner's title was too clear to admit of question. His absolute disposition gave him a right to the subjects, whose rents were arrested, against the whole world— cf. Scottish Heritable Security Company v. Allan Campbell & Company, January 14, 1876, 3 R. 333.

At advising—