Scottish Court of Session Decisions

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Cite as: [1874] ScotLR 12_117, [1874] SLR 12_117

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SCOTTISH_SLR_Court_of_Session

Page: 117↓

Court of Session Inner House First Division.

[Sheriff of Aberdeenshire.

Saturday, November 21. 1874.

12 SLR 117

James Cruickshank

v.

John Park and Others.

Subject_1Multiplepoinding
Subject_2Double Distress.

Facts:

The outgoing tenant of a farm assigned the crop on the ground to the incoming tenant at a certain rate to be paid to the landlord, who, after deducting his rent, was to hand over the balance to the outgoing tenant. A creditor of the latter arrested the money in the hands of the incoming tenant. Held that there was double distress, and that the landlord was entitled to raise a multiplepoinding.

Headnote:

John Park, the incoming tenant, and Mr and Mrs Watson, outgoing tenants, of the farm of Tillykeira, Lonmay, entered into the following agreement:—“It is agreed that the incoming tenant shall duly harvest the growing grain crop of 1873, now in the ground, and that the quantity of the same shall be estimated by proving from the stock, by men mutually chosen, who will have power to allow the incoming tenant a sufficient remuneration for harvesting, to be deducted from the price: It is further agreed that the incoming tenant pay over the price of the said crop to the proprietor, Mr Milne of Craigellie, or his factor, say 15s. per quarter to account at Martinmas 1873, and the rest when the fiars are struck; the said proprietor or his factor being bound to pay over the same to the outgoing tenants above-named, after deducting the rent due for crop 1873.” The sum payable was £140, and this was arrested in the hands of Park, the nominal raiser. Mr Milne, the landlord of the farm, and real raiser, raised an action of multiplepoinding, which was defended by the arrester Cruickshank, on the ground that there was no double distress. The Sheriff-Substitute sustained this plea, and, on appeal, the Sheriff pronounced the following interlocutor:—

“ Edinburgh, 2 d July 1874.—The Sheriff having considered the Reclaiming Petition for the real raiser in support of his appeal against the interlocutor of 8th May last, with the answers thereto, record, and whole process, dismisses the appeal; affirms the interlocutor appealed against, and decerns, but varies the finding as to expenses as follows,—Finds no expenses due to or by the arrester Cruickshank, but finds the other claimants entitled to expenses from the real raiser, of which allows an account to be given in, and remits the same, when lodged, to the auditor for taxation.

Note.—The Sheriff regrets to be obliged to throw out this action on a technical ground, but it is impossible to arrest the objection stated to the competency of the process by the claimants A B Watson and Mrs Watson. In 1873 these persons were leaving the farm of Tillykeira. The crop on the lands was their property, and by agreement, dated 5th August 1873, they assigned it over to Park, the incoming tenant, on condition that he should pay the value thereof to the proprietor, Mr Milne, or his factor, who again was taken bound to pay over the same to the granters of the deed, after deducting the rent due for crop 1873. Mr Park thus held the crop as trustee for the landlord, and the subsequent arrestment used in his hands by Cruickshank, as a creditor of the
Page: 118↓
Watsons, attached nothing. Nor does the circumstance that the landlord, after getting the money and paying himself, will hold the reversion for behoof of the Watsons, or any person in their right, constitute double distress. In no view, therefore, is there anything to warrant a multiplepoinding, and the judgment of the Sheriff-Substitute dismissing the action is right. No expenses have been given to the arrester, because his arrestment, althongh obliging the real raiser to call him as a party, is utterly inept; and, properly speaking, he has no locus standi in the case at all.”

Cruickshank appealed.

Authorities— Scott v. Drysdale, May 22, 1827, 5 S. 689; M'Target v. M'Target, May 12, 1829, 7 S. 591; Miller v. Ure, June 23, 1838, 16 S. 1204.

At advising—

Judgment:

Lord President—The question which we have to decide here is, whether a multiplepoinding is competent or not. The Sheriff-Substitute and the Sheriff have found that it is not, on the ground that there is no double distress. Now the fund in medio is the price of the out-going tenants' crop, which is due by the in-coming tenant as purchaser to the out-going tenant as seller, and the arresting creditor lays claim to this sum on the one hand, and on the other hand there is the landlord, who claims the whole fund. Now it is difficult to understand what is double distress if this is not. The landlord's right rests on an agreement between the in-coming and out-going tenants, and it appears to me that there are two questions, 1st, Whether the landlord can found on the agreement at all; and 2dly, Whether the agreement is a good one? To say that there is no double distress seems to me impossible, and the multiplepoinding is therefore competent. It is much to be regretted that the action was ever brought at all, but certainly there is a question in it, and the Sheriff has assumed that the arrester has created no nexus over any fund—which is just the question on the merits which has to be tried. I am for recalling the Sheriff's interlocutor and sending the case back to him.

Lord Deas—The Sheriff-Substitute was right in giving no reason for his decision, for the reasons which the Sheriff gives are all in favour of an opposite conclusion. If it turns out that there was no necessity for a multiplepoinding, the party causing it, and not the fund, will have to pay. It is a question whether the landlord, who is not a party to the agreement, may not have a jus quæsitum. Then as to the arrestment, if Mr Reid's view were carried out there would be no need for it at all; but of course when we get upon the merits it may turn out that there were circumstances which made it necessary. Meantime, I strongly advise the parties to consider whether they cannot come to some arrangement.

Lord Ardmillan—I am strongly of the same opinion, and, especially, I concur in Lord Deas’ last remark. It seems to me that there is a prospect here which would not be pleasant to most people, at least to those who dislike litigation. There really is no question which could not be settled in half-an-hour by the parties themselves. We cannot, however, enter into the merits at present, and we must sustain the competency of the action.

Lord Mure—I agree with your Lordships in regretting the litigation which has taken place, but on the question of competency I entertain no doubt. One party is claiming the whole fund, and another half of it,—a clearer case of double distress I never saw.

The Court pronounced the following interlocutor:—

“Recal the interlocutors of the Sheriff-Substitute, of date 22d May, and of the Sheriff, of date 2d July 1874: Repel the objections to the competency of the action, and remit to the Sheriff to proceed further in the cause; Find the respondent John Henderson Milne entitled to expenses in this Court; allow an account thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”

Counsel:

Counsel for Appellants— J. A. Reid. Agent— David H. Wilson, S.S.C.

Counsel for Respondent— Mackintosh and Keir. Agent—
1874