No arrestment jurisdictionis fundandę causa necessary where a foreign creditor, and his attorney, having recovered his debt by poinding, is summoned under the bankrupt-act, in order to contribute the statutory proportion of the proceeds of the poinded goods.
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James Gow, merchant in Arbroath, having become indebted to Ellis and Sons, merchants in London, they obtained a decree against him, and recovered payment (26th August 1802) by a poinding of his effects.
Black and Knox (14th September 1802) also raised an action against Ellis and Sons, and their attorney, in whose name the previous proceedings had taken place, in order to communicate the proportion of the price of the poinded effects, in virtue of statute 33d Geo. III. C. 74. § 6. Arrestments on the dependence were used in the hands of the attorney for Ellis and Sons, as well as in the hands of their law-agent, to whom the money had been paid by the messenger.
In this situation, Ellis and Sons
Pleaded: The action is altogether void, because, being foreigners, they have not been regularly cited. No arrestment jurisdictionis fundandæ causâ has been used. This is the only form by which persons, not subject to a territorial jurisdiction, can be made amenable to it, by fixing, within the territory, funds belonging to the debtor, from which the decree may be made effectual; Ersk. B. 1. Tit. 2. § 19.
Answered: This is not an ordinary action for debt brought against a foreigner. The subject in medio is the bankrupt-estate of Gow; the sum recovered by the poinding belongs not to the creditor poinder, but by statute belongs in part to whoever is in a situation to claim it. For this purpose, he is directed to summon the poinder; and a foreigner who resorts to the laws of this country, must submit to the same rules of diligence as a native.
The Lord Ordinary (23d February 1803) repelled the defence as to the competency of the action.
This was affirmed by the Court, (7th June 1805), on advising a petition and answers; and again, (25th June), by refusing a reclaiming petition, without answers.
Lord Ordinary, Polkemmet.Act. Gillies.Agent, Wm. Baillie,Alt. Cathcart, Forbes.Agent, Ar. Dunbar,Clerk, Home.
Fac. Coll. No. 212. p. 473.
*** The case of Hog against Hog, 16th June 1795, No. 119. p. 4628. voce Foreign, was affirmed on appeal as to the point there reported.
*** The case Strother against Read, 1st July 1803, referred to p. 4561, is No. 4. Appendix, Part I. voce Forum Competens.
