Scottish Court of Session Decisions

This case arose out of a multiplepoinding to have the right ascertained to the proceeds of certain furniture which had been handed over by Matthew Thomas Anderson and others to Isaac Lyons, an auctioneer, residing at Greenock, for the purpose of being sold by public roup. The sale took place on the 15th of October 1879, and the sum of £76, 15s. 0 1 2d. was realised, out of which Lyons deducted the sum of £41, 4s. 10 1 2d., being the amount of certain advances made by him and expenses as detailed in the roup-roll, leaving a balance of £35,10s. 2d., which he alleged to be the amount of the fund in medio.

Francis Woodrow Manford, who was called as a defender, objected to the condescendence on the fund in medio on the following grounds:—By bond and assignation and disposition in security, dated 3rd, 4th, and 7th August 1876, Matthew Thomas Anderson and others, who were also called as defenders, granted them to have borrowed from him the sum of £2000, which they bound themselves to repay at Martinmas 1876, and in security they disponed to him certain heritable subjects therein particularly described. As they however failed to pay the interest due under the said bond after September 1877, in order to secure his right to the subjects in the bond, he on 7th August 1879 raised an action of poinding the ground against them, which was duly served on 13th, 15th, and 19th August 1879, and decree in absence was pronounced against them on 21st October 1879. After the service of the summons the furniture belonging to the said heritable subjects was conveyed to Lyons' premises on the instructions of the defenders Anderson and others; on this coming to the knowledge of the objector he presented a note of suspension and interdict against them, praying, inter alia, for interdict against the sale and against the said Isaac Lyons paying the proceeds thereof to any other person than the objector. The said note was served on Lyons on 12th October 1879, and on 25th November 1879 the Lord Ordinary pronounced an interlocutor suspending and interdicting in terms of the prayer and declaring the interdict perpetual. It was explained that Lyons had no knowledge of the proceedings referred to before 12th October, when the said note was served upon him.

The objector pleaded—that “Having by the execution of the said summons of poinding the ground, and decree following thereon, acquired a real and preferable right to the said furniture, the said Isaac Lyons is not entitled to deduct or retain from the proceeds thereof any sums said to have been advanced by him to the granters of the said bond, or any of them.”

The Lord Ordinary ( Adam) sustained the objections for the objector Francis Manford.

Lyons reclaimed, and argued—The execution of the poinding alone, and not the mere service of summons, gave the preference here.—2 Bell's Com., pp. 57, 61.

The objector argued—The service of summons was quite sufficient. It was equivalent to a seizure of the debtor's property by the creditor, and vested him with the right to that property. His future course was only to realise the property.— The Royal Bank v. Bain, 6th July 1877, 4 R. 985; Campbell's Trustees v. Paul, 13th Jan. 1835, 13 Shaw 237; Barstow v. Mowbray, 11th March 1856, 18 D. 846.