Scottish Court of Session Decisions

This was a suspension of a decree of poinding of the ground obtained in the Sheriff-court of Renfrewshire, by the late Robert Irvine of Levengrove, a heritable creditor of Mr and Mrs J. F. Anstruther, the owners of the premises in which the Royal Bank has its office at Port-Glasgow, and of an executed poinding proceeding thereon of 170 gold half-sovereigns in the bank office. The ground of suspension was, that the whole rent due by the bank had been bona fide paid to Mr Anstruther, or on his account, before the poinding was executed. The decree of poinding the ground was obtained in June 1863, and an action of multiplepoinding as to the rents then due was raised by the bank, in consequence of diligence being used by other heritable creditors. This action was terminated in August 1865 by a decree in favour of Mr Dixon's son and heir, Robert Dixon, and his tutors and curators, the present respondents, who then intimated for the first time a claim for the three years' rent due subsequently to those which formed the fund in medio in the multiplepoinding, and which, they said, were

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also attached by their decree of poinding the ground.

The Lord Ordinary found “that, neither service of the actions of poinding the ground referred to by the respondents, nor the decrees obtained in said actions had the effect in law of interpelling the complainers from paying to the landlord the rents thereafter becoming due by them”; and, accordingly, repelled the respondents' Pleas in Law and sustained the reasons of suspension.

His Lordship added the following note to his interlocutor:—

“The only question now between the parties is as to the effect of the citations given or decrees obtained in the successive actions of poinding the ground at the instance of the late Mr Dixon and his son and heir, the present respondent. The respondents rely upon the decision in the case of Lang v. Hislop, 16 D. 908, as establishing that citation in an action of poinding the ground is such an intimation, to the extent of an assignation of rents contained in the deed under which the poinding is brought, as to interpel him from thereafter paying rent to his landlord. The Lord Ordinary thinks that decision does not affirm any such general proposition. On the contrary, it was, as he understands the judgment of the Court delivered by Lord Wood, rested upon the special terms in which the summons of poinding the ground was libelled in that case, in so far as it expressly set forth that the bond and disposition in security on which it proceeded contained an assignation to the rents, maills, and duties of the lands. In the present case, it appears from the extract decrees of poinding which are produced, that the summonses contained no such statement. In this respect they are in the ordinary style of a summons of poinding the ground, as given in the Juridical Styles. That such should be the style is quite consistent with principle, as poinding of the ground does not at all proceed upon the assignation to rents, which can only be given effect to by an action of maills and duties. Poinding the ground is competent to any party having a debitum fundi, whether he holds an assignation to the rents or not.

Infeftment on the security completes the assignation of the rents, to the effect of securing the creditor's preference in a competition. But intimation to the tenant personally is necessary to interpel him from paying to his landlord. In reference to his right to the rents, the creditor, though infeft, is merely in the position of an assignee, who quoad the tenant has not interpelled him by intimation. To complete his right in this respect, he must give intimation, or do something which the law will hold to be equivalent. The Lord Ordinary does not think that he can be held to have done either, by merely serving a summons necessary for another and quite different purpose, and which does not mention the assignation, or imply that the pursuer has any such right. Poinding the ground is not, in any correct sense, the assertion of a claim to the rents, or a diligence to attach them. It is an attachment for payment of a debitum fundi of the moveables on the ground, whether belonging to the proprietor or to the tenant,—but limited, in the latter case, to the amount of the rent. The use of such a diligence does not necessarily import the creditor's intention to put in force his right to the rents if he has it, nor does it import that he has that right. On these grounds, the Lord Ordinary cannot sustain the general proposition contended for by the respondents in regard to the effect of citation in a poinding of the ground; and he thinks that the decision in Lang v. Hislop gives no support to that proposition, and does not apply to the present case.

The respondents referred to a joint minute of admissions in a Sheriff-court process of multiplepoinding regarding previous rents, No. 49 of process, as containing a consent to hold the citations and decreet in the actions of poinding the ground as completed poindings. The Lord Ordinary should have doubted whether an admission given for the purposes of that process could have been imported into this case. But it does not appear that the tenants, the present complainers, who were raisers of the multiplepoinding, were parties to the minute, and, of course, no agreement among the claimants can affect their rights.”

The respondents reclaimed.