Scottish Court of Session Decisions

Now the next thing to notice is, that Campbell did not admit Clark's claim, and so Clark was bound to constitute his debt. He does not do that but raises this action of multiplepoinding. The objection to this is unanswerable. The money was deposited in Macbride's hands for a particular purpose, namely, satisfying Clerk's claim, but he cannot get the money until he establishes that claim, and so this multiplepoinding is raised by Clark simply to constitute a debt against Campbell. That is obviously quite incompetent. There can be no competition between parties, because Campbell simply denies that he owes the sum which has been deposited, and if Clark establishes his claim he at once silences Campbell's objection. There is only one case to which I mean to refer as an authority, the case of Middleton v. Milne, 21 Dec, 1843, 6 D. 316. In that case certain trustees under a trust-settlement had paid the debts of the truster and disposed of the remainder of the trust-estate in terms of the settlement, with the exception of a sum of £1,200 which was the amount of certain legacies. Certain parties, who claimed to be creditors of the truster as next of kin of his former wife, raised an action of multiplepoinding in name of the trustees as nominal raisers. The trustees lodged objections to the summons, on the ground that there was no double distress, the only disputed claim against the estate being that of the real raisers themselves, and the Court unanimously gave effect to the objection, on the ground that if the creditors had succeeded in constituting their claim they would have been clearly preferable. That is an exactly parallel case, for if Clark succeeds here in establishing his claim it is clear he must get the money; if not, it is Campbell's. There was another question raised by the respondent, whether the appellant was not bound to sist a mandatory. I think not, because even though he failed to do so, we could not sustain this process, which I hold to be incompetent.

Lord Deas—This action was raised in the Sheriff-court of Glasgow on 27th May 1872. It went on till 15th Oct. 1872, and up to that time this defence was never stated. There had been decree before that, and it was only by the interlocutor of 15th October that the preliminary defence was allowed to be lodged. The same party went on delaying and, as we see by a variety of subsequent interlocutors, causing all the expense and delay he could. Then he was ordered to sist a mandatory and allowed decree to go against him, and then he brought the case here by appeal. The direct question therefore is, was he bound to sist a mandatory? I think he was. There has been a great deal of litigation here, and I cannot see any difference betweeen this and any other preliminary plea. I do not say that the matter might not have been so plain and clear as that we might not have taken a short-hand course and dismissed the action at once, but it is not so. There is a considerable amount of doubt and question about it. The Sheriff decided that a mandatory should be sisted, and I think that before parties can be heard on the other objection that ought to be done. As to the objection itself, I can see no incompetency in the matter. They had a litigation and agreed to deposit a sum of money in Macbride's hands. I see nothing which leads me to suppose that that was merely till the debt was constituted by one against the other. Macbride was not bound to be depositary for ever, and he might fairly raise a multiplepoinding in order to compel them to settle the matter. It might turn out in the end that the multiplepoinding was unnecessary, and the party who raised it might be found liable in expenses; that has often happened, but there is a difference between unnecessary and incompetent. I do not think that the case of Middleton; referred to by your Lordship, is applicable at all. The two men litigating here are admittedly the only two having an Interest in this sum, but in that case there was only one claimant.

Lord Ardmillan—I do not think that we can dispose of the question of the mandatory without at the same time considering the question of competency. I agree with Lord Deas as to the proceedings in the Sheriff-Court. Campbell has been all along very unwilling to appear, and so there is a presumption in favour of the mode of litigation. If Clark, instead of raising an action against Campbell in England, had deposited a sum of money in Macbride's hands and then raised a multiplepoinding, he would be raising an action against an Englishman and compelling him to appear in a Scotch Court, and in that case we are forced to consider the question of competency. I have no doubt that here there is no double distress, and that view is borne out by the case of Middleton, and by the cases of Arnot v. Stewart, 23 Feb. 1843, 5 D. 715, and Scott Moncrieff v. Thomson, 1 June 1844, 6 D. 1100.

I agree that here the incompetency is evident, and so I cannot hold that Campbell is bound to sist a mandatory in a Scotch Court.

Lord Jerviswoode concurred.