Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Caithness in two conjoined petitions relative to the poinding of certain nets. The appellant had poinded nets in the possession of a party against whom he held a small-debt decree. The respondent, to whom the nets belonged, and who had merely hired them to the appellant's debtor, carried them off, or got them carried off, in disregard of the poinding. The appellant therefore presented a petition to the Sheriff, craving restoration of the nets, and that the respondent should forfeit double the appraised value. The respondent presented a cross petition, craving interdict against the appellant in any way interfering with the nets.

The two petitions having been conjoined and a proof led, the Sheriff-Substitute ( Russell) pronounced the following interlocutor:—“The Sheriff-Substitute having resumed consideration of the conjoined applications, with the writs produced, proof adduced, heard parties' procurators, and advised the cause: Finds that the petitioner Murdoch Macdonald was employed by the respondent Angus M'Leod as a hired hand during the fishing here, from July to September 1868; and at the end of the fishing there was a balance of wages due to him of £5, 16s. 6d.: Finds that, during the said fishing, the said Angus M'Leod was the owner of the boat and drift of nets used in the fishing; and that, during the fishing season in the present year, the said Angus M'Leod continued to use the boat and drift of nets as the ostensible owner thereof; Finds that, upon the 27th of July last, the said Murdoch Macdonald obtained a decree in the Sheriff Small Debt Court against the said Aligns M'Leod for the balance of wages aforesaid; and that, upon the 28th of August last, he caused James Weir, sheriff-officer, to poind seven nets, as the properly of the said Angus M'Leod, and that a poinding was executed accordingly: Finds that, in the knowledge of the said poinding, Alexander Malcolm, fishcurer in Pultneytown, directed the said Angus M'Leod to remove the nets so poinded from the ground rented by the said Angus M'Leod, on which the officer had attached them, and to carry them to the store of the said Alexander Malcolm; and the said Angus M'Leod also, in the knowledge of the said poinding, removed the nets to said store, where the same were detained or used by the said Alexander Malcolm and Angus M'Leod: Finds that the said Murdoch Macdonald presented the complaint, setting forth the breach of poinding, and for restoration of the nets: Finds that, whatever might be the claims of the said Alexander Malcolm in relation to these nets, his procedure in the removal thereof, at his own hand, was highly reprehensible, and therefore, in so far sustains the complaint, and Finds the said Alexander Malcolm and Angus M'Leod liable in the expenses of process applicable to “the said complaint, and remits the account, when lodged, to Mr Bisset to tax and report: separating Finds that the said Alexander Malcolm, after removal and disposal of the said nets, presented the application for interdict against the said Murdoch Macdonald interfering with, or selling the said nets, on the allegation that the nets were the property of him, the said Alexander Malcolm: Finds it established that the said nets had, inter alia, been acquired for an onerous cause by the said Alexander Malcolm from the said Angus M'Leod previously to or during the currency of the last fishing; and that the said Angus M'Leod was in possession of the said nets solely as having received them on ‘deal’ for a stipulated consideration of £20 or thereby, payable to Malcolm as owner, and therefore sustains the application, and perpetuates the interdict formerly granted; but in respect of the censurable conduct of the said Alexander Malcolm, above referred to, Finds no expenses due; and decerns.” Both parties appealed to the Sheriff ( Fordyce) who pronounced the following interlocutor:— “The Sheriff having considered this case on the appeals of the parties respectively, and having

Page: 255↓

heard parties thereon, and advised the same, recals the interlocutor of the Sheriff-Substitute of 13th September current, complained of: Finds, in point of fact, (1) That the nets referred to in the process are sufficiently instructed or proved to have become the property of the respondent Malcolm, in 1868, by a valid transaction between him and William and Angus M'Leod, the then owners of the nets; (2) That a poinding of certain of the said nets was executed on 28th August last at the instance of the petitioner Macdonald, an alleged creditor of the said Angus M'Leod; (3) Finds, in point of law, that the nets so poinded could not be validly attached as the property of the said Angus M'Leod, in respect that, though the said Angus M'Leod had, with his brother William, the use of them for the fishing of 1869 from the respondent Malcolm, they were the property of the latter, and not that of Angus M'Leod; therefore sustains the application for interdict, and renders the interdict formerly granted perpetual: Dismisses the complaint at the instance of the said Murdoch Mac-donald for breach of poinding: Finds the said Murdoch Macdonald liable to the said Alexander Malcolm in the expenses of process: Allows an account thereof to be lodged, and remits the same, when lodged, to Mr Bisset, in lieu of Auditor of Court, to tax and report; and decerns.”

The petitioner (Macdonald) appealed.

Mair for him.

M'Lennan in answer.

The Court adhered to the Sheriffs judgment.