Scottish Court of Session Decisions

Henry Lattimer, butcher, raised a multiplepoinding in the Sheriff Court of Midlothian, as pursuer and real raiser, against Peter Anderson,

Page: 58↓

ham and bacon merchant, and against George Wight, draper, and Livingstone & Weir, mercantile agents, creditors or pretended creditors of Peter Anderson, to have it found that he was liable only in once and single payment of a sum of £108, 14s. 10d., which formed the sum in medio.

The circumstances were as follows:—In March 1880 Lattimer bought from Anderson a going business of ham and bacon-curing then carried on by the latter in Edinburgh, with goodwill, stock-in-trade, and current lease of the premises, for £600, of which £350 was paid down in cash and £150 more by a bill, the remaining £150 to be payable on 23d June 1880. The pursuer averred—(Cond. 5) “Upon 26th March 1880 a bill for £100, dated 23d of same month, and bearing to be drawn by the defender the said Peter Anderson upon the pursuer in favour of the defender the said George Wight as payee, and payable three months after date, was presented to the pursuer for acceptance. The pursuer refused to accept said bill, in respect that his doing so would endanger his rights, and the pursuer understands that thereafter the same was unwarrantably protested for non-acceptance. The said defender, on the one hand, maintains that the presentation of said bill operated at the date of the presentment as a transfer to him of the funds belonging to the other defender, the said Peter Anderson, then in the pursuer's hands, to the extent of the amount of the bill, and so created a preference in favour of him, the said George Wight, for the amount thereof upon the fund in medio; while, on the other hand, the defender, the said Peter Anderson, as the pursuer understands, maintains that by the sequestration of his estates under the Bankruptcy Acts, as after mentioned, within less than sixty days of the date of said bill and presentment thereof, the pretended preference claimed by the defender the said George Wight has been rendered null and void, the said bill having been granted for a debt subsisting prior to its date. The pursuer denies that said bill was in his knowledge drawn by the said Peter Anderson in favour of the said George Wight, as stated by the latter.”

On 19th April 1880 the defenders Livingstone & Weir used arrestments in the hands of the pursuer on dependence of a Sheriff Court action at their instance against Anderson, to attach all money, &c., belonging to the said Peter Anderson to amount not exceeding £50 in value. On 20th May 1880 Anderson's estates were sequestrated, proceedings in the process being subsequently sisted in consequence of his creditors at their first meeting having resolved to wind up the estates by deed of arrangement.

In these circumstances Lattimer raised the present action, the fund in medio being the above-mentioned balance of £150 of price due by him to Anderson, under deduction of various small sums which he had incurred on Anderson's account.

Answers to the condescendence were lodged for the defender Wight, who pleaded—“(1) No double distress. (2) The arrestments libelled having been cut down by the sequestration as condescended on, there is no double distress, and the action should be dismissed. (3) In respect the bill libelled operated a transfer as at the date of presentment thereof of the funds in the hands of the pursuer to the extent of the amount of the bill, this action quoad the defender Wight, and the sum in the bill held by him, is incompetent and ought to be dismissed.”

On 28th July 1880 the Sheriff-Substitute ( Hallard) found “that there is no double distress to justify this process of multiplepoinding,” sustained the defences to that effect, and dismissed the action. This note was added—

“ Note.—……In this situation it is thought that there is no double distress. The assignation implied in the presentation of Wight's bill introduces no conflict upon the fund in Lattimer's hands. To that extent Anderson is divested of his claim against Lattimer, and that is all. The debt is divided between the original creditor and his assignee by virtue of the presented draft, but one portion of a debt split in two does not conflict against the other. Lattimer runs no danger against which he needs the protection of a multiplepoinding. If an action be brought against him on the bill, he is safe behind the maxim assignatus utitur jure auctoris. As already mentioned, Weir & Livingstone's arrestments are out of the field.”

On October 4th the Sheriff ( Davidson) adhered.

Lattimer appealed to the Court of Session.

By the deed of arrangement which was executed in June and July 1880 between Anderson and his creditors he expressly reserved right to challenge the alleged preference obtained by Wight by the bill of 23d March.

At the discussion in the Court of Session a letter was produced, of date October 14, 1880, from Mr Turner, Anderson's cautioner, to the law-agents of Lattimer, in which he informed them that should Lattimer pay the money to Wight, Anderson would call for second payment of it to himself, and that as soon as he was reinvested in his estates he intended to lodge a claim in the multiplepoinding, and, if necessary, to bring a reduction of the bill, on the ground that though he admitted having subscribed a blank bill stamp, it was on the footing that it was simply constituting the balance of £100 due to Wight, and that he gave no authority for filling up the bill as had been done.

The appellant argued—There was here a relevant case of double distress, and Lattimer was not in safety to pay the money away in the face of this bill and of the arrestments. A nexus had been created over the fund, and Lattimer's only safe course was to raise a multiplepoinding.

The respondent replied—There was no proper case of double distress. There was not reasonable ground for belief on Lattimer's part that he would be called on for double payment.

Authorities quoted— Russell v. Johnston, June 1, 1859, 21 D. 886; Connell's Trustee v. Chalk, March 6, 1878, 5 R. 735; Mitchell v. Strachan, Nov. 18, 1869, 8 Macph. 154.