Scottish Court of Session Decisions

A person named Hale was robbed in Edinburgh of a sum of about £60 on 28th January 1882. The thief was apprehended, and a sum of £40 was recovered by the criminal authorities. On 22d February 1882 an arrestment was used in the hands of the Procurator-Fiscal of Midlothian by Abraham Eastburne, who alleged that he was a creditor of Hale, the owner of the money, and who on 20th March thereafter, in an action then depending between him and Hale, obtained a decree finding Hale bound to count and reckon with him for the profits of a joint adventure in which they were engaged. On 24th February he used a similar arrestment in the hands of the Sheriff-Clerk of Midlothian, into whose hands the money would in due course come that it might be produced at the trial, the diet in which was fixed for 9th March. At the date of these arrestments the money had not come into the hands of either of the arrestees, being still in the possession of the Procurator-Fiscal of the City.

On 28th February the money came into the hands of the Sheriff-Clerk of Midlothian for the purpose of the trial. On 9th March the thief was tried before the Sheriff with a jury at the instance of the Procurator-Fiscal of Midlothian and convicted.

On 29th March Samuel Cowan & Co., printers in Perth, who had raised an action against Hale for an account, used an arrestment in the hands of the Procurator-Fiscal of Midlothian on the dependence of the action. On 31st March they used an arrestment in the hands of the Sheriff-Clerk. On 21st April, having obtained decree in the action, they used arrestments in execution thereof in the hands of both the Procurator-Fiscal of Midlothian and the Sheriff-Clerk. In point of fact, the money, which had been between the 28th February and the 9th March in the hands of the Sheriff-Clerk, remained after the trial on the latter date in the hands of the Procurator-Fiscal.

Cowan & Co. raised this multiplepoinding in name of the Procurator-Fiscal and Sheriff Clerk to determine the question between them and Eastburne, the other arresting creditor of Hale, as to which of them was entitled to obtain the money from the nominal raisers.

Both Cowan & Co. and Eastburne claimed the whole fund, each claiming a preference in respect of their arrestments. After a proof the Sheriff-Substitute ( Rutherfurd), on the ground that East-burne's arrestment was premature and attached nothing, sustained the claim for Cowan & Co.

On appeal the Sheriff (Davidson) adhered.

“ Note—The facts as to the times the fund in medio came into the hands of Mr Stuart and Mr Whitten, and the dates of the respective arrestments, are now beyond controversy. The objection taken at the debate under this appeal, that the fund was not arrestable in the hands of the Procurator-Fiscal or the Sheriff-Clerk, was not stated before; and it is thought besides that it is not well founded.”

Eastburne appealed to the Court of Session, and argued that his arrestment, which was admittedly prior in date, had validly attached the fund, since though the money might not be actually in the hands of the Procurator-Fiscal of the County at the date of his arrestment, it was within his control for the purpose of the trial, and was thus constructively in his possession. (2) Alternatively, the respondent could not prevail, for an arrestment in the hands of a public functionary such as a procurator-fiscal was bad. He had nothing to do with a race of diligences, and only held the fund for a temporary and limited purpose connected with his public duty, and, that purpose accomplished, was bound to hand over the money to the person from whom it had been stolen.

Argued for respondents—If the multiplepoinding was competent, there was no question that the judgment was right, for appellant's arrestment was premature and attached nothing. In any view, the appellant was barred by his own pleading from assailing the competency of a process to which he had not taken his opportunity of objecting, but in which he had stated his own claim. (2) The arrestments used were competent. The test of the competency of an arrestment was the liability of the arrestee to account to the common debtor, and not a precise relation of debtor and creditor. There was clearly such liability to account here. Assuming the question to be, whether it is competent in the hands of a procurator-fiscal to arrest funds coming into his hands in the course of his public duty, the analogous cases in which arrestment of money consigned with a Clerk of Court had been held competent were in point. The only limitation was that the arrestment must not interfere with the consignation or other purpose for which the official holds the funds in accordance with the orders of Court or his public duty— Pollock v. Scott, 6 D. 1297; Lockwood, July 4, 1738, Elch. Notes 37; Gross, Feb. 21, 1775, Hailes 615. It was matter of practice for such officials to raise multiplepoindings to determine such questions as the present. A Clerk of Court did so in the case of Campbell v. Lotlnans & Finlay, 21 D. 63. A procurator-fiscal did so in Brown v. Marr and Others, July 8, 1880, 7 R. 427; See Bell's Comm., ii. 71 (7th ed).

At advising—