Scottish Court of Session Decisions

This was a note of suspension of a charge given upon a Debts Recovery Court decree, the complainers being Messrs Caw, Prentice, Clapperton, … Company, shipowners and agents for the s.s. “Saint Jerome,” Glasgow, and the respondents being A. J. reighton … Company, licensed grain weighers, Glasgow, and A. J. Creighton and Mrs Jessie Robertson Telfer or Creighton, the individual partners of that firm.

The facts sufficiently appear from the opinion of Lord Low infra.

The Lord Ordinary on the Bills ( Pearson), by interlocutor dated 18th December 1896, on consignation, sisted execution, and thereafter passed the note and continued the sist.

On 29th October 1897 the Lord Ordinary ( Low) issued the following interlocutor—“Sists procedure for the period of four weeks in order that the respondents may take such proceedings as they may be advised for the purpose of having the arrestments mentioned in the statement of facts for the complainers set aside: Reserves all questions of expenses and grants leave to reclaim.”

Opinion.—“The complainers are indebted to the respondents A. J. Creighton … Company in the sum of £36 odds for work done upon their employment. After the debt had been incurred arrestments were used

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in the complainers' hands of all sums of money due by them to A. J. Creighton.

It is admitted that if A, J. Creighton is the sole partner of A. J. Creighton … Company, the arrestment attached the complainers' debt to that company.

The complainers intimated the arrestment to the respondents, but the latter brought an action in the Debts Recovery Court, and obtained decree on 30th November 1896 for the sum due but without expenses.

On 9th December a second arrestment was used in the complainers' hands at the instance of the same arrester, of all sums due by the complainers to ‘Andrew James Creighton as sole partner of the firm of A. J. Creighton … Company.’

On the 15th December the respondents charged the complainers upon the Sheriff Court decree. The complainers then brought the present suspension of the charge, and they have consigned the sum in dispute.

The respondents have produced a contract of copartnership which purports to show that shortly before the respondents were employed by the complainers Mrs Creighton became a partner of the firm of A. J. Creighton … Company along with her husband A. J. Creighton.

The respondents argued that that contract is in itself sufficient to establish that the arrestment did not attach the fund in question, but if that is not sufficient they ask to be allowed to prove the partnership.

The respondents also argued that if the complainers desired to prevent them proceeding with diligence to enforce payment, they (the complainers) ought not only to have suspended, but to have brought a multiplepoinding.

The complainers, on the other hand, contended that they ought not to be forced to contest the question of the validity of the arrestment in this action, because a decree in it would not be res judicata in a question with the arrester. As to a multiplepoinding, the respondents could, if they liked, raise such an action in the complainers' name.

Now, I do not think that the complainers would have been in safety to pay to the respondents. No doubt the contract of copartnery is prima facie evidence that A. J. Creighton has a partner, but I do not know upon what grounds the arrester maintains that the former is the sole partner. There is no suggestion of any collusion between the complainers and the arrester, and the former have shown their readiness to pay the money to whomsoever may be found entitled thereto by consigning it in the present process. All that the complainers desire is to be protected from the risk of being forced to pay the same sum twice over, and I think that upon the authorities they have adopted the proper procedure to effect that purpose.

In the first place, there is the case of Mitchell v. Strachan, 8 Macph. 154. There Strachan obtained a decree against Mitchell, and Duthie, a creditor of Strachan, used arrestments in Mitchell's hands. Mitchell then brought an action of multiplepoinding. The Court held that multiplepoinding was incompetent. Lord Benholme, although he did not formally dissent, stated very weighty grounds for doubting the soundness of the judgment, but the important point (for the purposes of this case) is that the opinion of the majority of the Judges was based upon the view that Mitchell's proper remedy was to bring a suspension.

Again, in Ferguson v. Bothwell, 9 R. 687, Bothwell obtained decree for a sum of money against Ferguson, charged him to make payment, and proceeded to poind certain of his effects. Subsequently, but before a sale under the poinding, Keith, who had a claim against Bothwell, arrested in Ferguson's hands. Ferguson then brought a multiplepoinding and consigned the sum in dispute. Notwithstanding the multiplepoinding, Bothwell proceeded with his diligence and sold the poinded effects. Ferguson then brought an action of damages against Bothwell for proceeding with the diligence pending the action of multiplepoinding. The Court dismissed the action as irrelevant, holding that Ferguson should have brought a suspension of the diligence.

The Lord President said—‘The mere circumstance that these quasi-competing claims exist does not entitle the debtor to remain still and do nothing. He is bound to protect himself, and the obvious way for him to do that is to suspend the charge, and interdict the proceedings in the poinding by suspension and interdict, in the course of which process consignation of the sum may be made.’

Lord Shand said—‘The plain course is, if there are good grounds for not paying to the poinding creditor, to go to the Courts and suspend the diligence. Then the matter can be inquired into, and the probability is that, as a condition of proceeding in the suspension, consignation will be required.’

Now, under these authorities, the complainers here have taken the proper course in bringing a suspension. But the question between the three parties interested cannot be determined in the suspension, because the arrester is not a party, and cannot be made a party, without her consent. How, then, is the suspension to be disposed of? I think that the complainers have reasonable ground for saying that they might not be in safety to disregard the arrestment and pay to the respondents. Does that entitle them now to have the charge simpliciter suspended? The complainers contended that that was the view taken by the learned Judges in the cases to which I have referred, and it may be so. I think, however, that the safer course is not finally to dispose of the suspension without giving the respondents an opportunity of having the arrestment set aside. I shall therefore sist procedure for a limited period, and if within that period the respondents have not instituted proceedings for the purpose of having the arrestment taken out of the way, I shall pronounce decree of suspension.”

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Thereafter the Lord Ordinary on 30th November 1897 pronounced the following interlocutor—“In respect that it is stated the arrester has brought an action of furthcoming of the sum alleged on record to have been arrested, continues the sist formerly granted, to await the result of said proceedings.”

On 14th December 1897 Lord Kincairney, acting for Lord Low, who was absent owing to illness, pronounced the following interlocutor—“Recals the sist granted by interlocutor of 29th October last: Suspends simpliciter the charge complained of, and whole grounds and warrants thereof, and decerns: Finds the respondents liable in expenses,” …c.

The respondents reclaimed.

It was stated at the bar that some delay had occurred owing to Mrs Creighton having changed her agent, and that the action of furthcoming had actually been raised the day before the date of Lord Kincairney's interlocutor, but that this was not then known to the respondent's counsel, and consequently was not stated to Lord Kincairney. In view of these circumstances counsel for the respondents asked that the interlocutor reclaimed against should be recalled and a sist granted to await the result of the furthcoming, this being the course adopted by Lord Low, the Lord Ordinary before whom the cause depended.

Counsel for the complainers were not called upon.