Scottish Court of Session Decisions

Charles Seton, who resided at 35 Lorne Street, Leith Walk, Edinburgh, having in March 1881 gone over to Dublin, granted while there, to David R. Roberts, his brother-in-law, a receipt dated Dublin, 19th March, 1881, and bearing to be for £135, 10s., as the amount agreed upon to be accepted by him for the whole furniture and plenishing in his house 35 Lorne Street, Leith Walk, which furniture and plenishing were thereby declared to be sold to Roberts, with full power to him to remove them when it might suit him. He bound himself also to relieve Roberts of all liability with regard to the half-year's rent of the house then coming due. On 14th April 1881, Robert White, grocer, Leith, obtained decree against Seton in the Sheriff Court of Midlothian for a sum due by Seton to him, with interest and expenses. On 2d May the furniture was delivered by Roberts to the North British Railway Co. at Edinburgh, consigned to himself at Dublin, and a receipt was granted to him therefor. On the same date the furniture was arrested in the hands of the railway company as belonging to Seton by White in respect of the decree he held against Seton, and by William Massie and David Wilson on the dependence of actions they had raised against Seton, and in which they subsequently obtained decree. On 14th May a further arrestment was laid on the furniture by G. & J. Walker, in virtue of a bill of which Seton was acceptor, and which had been protested for non-payment and duly registered. On 12th May White raised this action of multiplepoinding in name of the railway company to have the right to the furniture determined. Roberts was not called in this action, but was sisted as a defender by minute, and objected to the competency of the multiplepoinding. He averred that the furniture was his, and had been taken delivery of by him, and was held for him by the railway company, and that none of the arresters had any claim against him. He therefore pleaded that the arrestments were inept, and that there was no double distress. The real raiser averred in answer that there was no bona fide transaction between Seton and Roberts, who was his brother-in-law, and a conjunct and confident person; that Seton was insolvent at the date of the alleged sale, and was now notour bankrupt, and that the pre-tended sale was an attempt to defeat the diligence of his creditors. He also pleaded that Roberts being a foreigner was bound to sist a mandatory. Claims were also lodged for the other arresting creditors of Seton. The Sheriff — Substitute ( Hallard) on 1st July found the multiplepoinding competent, and ordained Roberts to sist a mandatory, and on appeal the Sheriff adhered. Roberts then, without prejudice to his previous defences, lodged a claim to the whole furniture as being his property. He did not sist a mandatory. On 7th October the Sheriff-Substitute, in respect of his failure to sist a mandatory, disallowed his claim.

Roberts appealed to the Second Division, and argued—The furniture being his, the arrestments used on the footing that it was Seton's were null. If this sale were reducible, as the arresting creditors of Seton alleged, it must be first reduced in the Court of Session, the only Court competent to such a reduction, before the arresting creditors could claim it as Seton's. In such a process he would not have to sist a mandatory. The process could not go on before the Sheriff till that question was settled.

The respondents argued—The multiplepoinding was quite competent. The cases of Craig v. Thomson, January 13, 1847, 9 D. 409; Mathew v. Fawns, May 21, 1842, 4 D. 242; Metzenburgh v. Highland Railway Company, June 25, 1869, 7 Macph. 922—settled that in such circumstances the railway company was entitled to bring a multiplepoinding. They were willing that the process should go on before the Sheriff without a mandatory being sisted.

At advising—