Scottish Court of Session Decisions

On Saturday the 26th January 1884 Messrs Malone & M'Gibbon, cattle salesmen, Glasgow, delivered to the Caledonian Railway Company at Sighthill twenty black cattle, to be fed and transmitted to Forfar for the market there on the following Monday. At a later part of the same day, when they called again to arrange for the despatch of the cattle, they were informed that the cattle had been arrested in the hands of the company, conform to arrestment of the same date (26th January) by virtue of letters of arrestment by the Sheriff of Lanarkshire jurisdictionis fundandœ causa containing warrant to arrest dated at Glasgow the 26th of January, raised at the instance of Sheehan & M'Gibbon, cattle salesman, Market Street, Glasgow, and William F. Sheehan, cattle salesman there, the liquidator of said firm, or as in right of the assets thereof, complainers, against Peter Meere, cattle merchant, Ennis, County Clare, Ireland, defender. The schedule of arrestment contained a marginal note, which stated that “this arrestment applies to a consignment of twenty black cattle lying at St Rollox cattle shed, Glasgow.” The railway company refused to deliver up the cattle until this arrestment was recalled, and Malone & M'Gibbon presented this petition to the Sheriff in order to have them ordained to deliver up the cattle, or otherwise to pay the sum of £300 as the value of them.

The defenders (who averred that the cattle belonged to Peter Meere, for whom the pursuers were agents) pleaded—“The cattle in question having been arrested while in the custody of the defenders, and therefore the defenders not being in safety to deliver the cattle to the pursuers, they are entitled to absolvitor.”

The pursuers pleaded—“(1) The defences not being relevant or sufficient to sustain the defenders' pleas, they ought to be repelled, and decree granted in the pursuers' favour, with costs.”

The Sheriff-Substitute ( Spens) repelled the defences and ordained delivery of the cattle.

“ Note. — It is admitted that the pursuers handed the cattle in question to the defenders as public carriers for transmission to Forfar. I know it is a common practice to arrest goods in the hands of railway companies at the instance of third parties claiming a right of property. It may, however, be open to argument that a railway company being merely an agent of the consigner or consignee as the case may be, goods are not attachable by arrestment in their hands. In the present case there is no necessity for deciding such a point, for the view I take of the present case is as follows:—The arrestment lodged was admittedly an arrestment to found jurisdiction against a man of the name of Meere. An arrestment to found jurisdiction imposes no nexus. If the cattle in question belonged to Meere, the purpose of the arrestment was attained whenever the arrestment was served on the railway company, because Meere would ipso facto be subject to the jurisdiction of the Scotch Court. This being so, the duty of the defenders as public carriers to the pursuers was in no way interrupted. Even if the view were taken that a nexus was imposed by the arrestment, it is clear, I think, that such a nexus cannot be held to subsist, the party who laid the arrestment not having up to the present time raised an action and arrested on the dependence.”

On appeal the Sheriff-Principal ( Clark) found that the defenders were warranted in detaining the cattle until released from the order contained in the arrestment: therefore recalled the interlocutor appealed against, and dismissed the action.

“ Note.—The facts appearing on record, and the productions, appear to be sufficient to dispose of this action without proof. It may be that the diligence of arrestment ad jurisdictionem fundandam may operate with considerable inconvenience and even harshness in the case of certain parties, and this may be true in the present instance in so far as the pursuers are concerned. But while the law stands as it does, it seems to me that effect must be given to it regardless of such considerations. The arrestment in question was laid in the hands of the defenders, and requires the subjects arrested to remain in sure fence and arrestment until sufficient caution be found acted in the books of Court. Whatever equities, therefore, might exist as between the users of the arrestment and the parties claiming rights of property or otherwise to the articles arrested, it was the plain duty of the arrestees, the defenders, to retain the arrested subjects until relieved of this obligation in regular form. It was maintained, however, on the authority of certain cases noted below, that the articles said to be arrested were not duly specified, so that in point of fact they were not made the subject of proper arrestment. On referring, however, to the schedule of arrestment, it will be seen to bear the following note:—‘This arrestment applies to the consignment of 20 black cattle lying at St Rollox cattle shed, Glasgow.’ This, in the circumstances of the case, appears to me sufficient specification to put the arrestees in mala fide if they had disregarded it. It was contended that this note, being a mere marginal addition, was not to be held as part of the writ. I can find no authority for this view. I have made full inquiries into the practice of the Court, and I find

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that such notes are quite common in practice as a mode of specifying the articles made the subject of arrestment. Indeed, it would appear that introducing such specification into the body of the writ is unknown. Furthermore, it must be considered that the articles arrested being cattle, no other specification than that contained in the note could well have been given. Cattle are not ticketed, and it is hard to see how addresses could be attached to them. The notice given seems amply sufficient to identify the cattle in so far as the arrestees were concerned; and this really is all that can be required. It may also be observed from the pleadings, particularly the third article of the pursuers' condescendence, that they were in no doubt as to the sufficiency of the notice; but that the real ground upon which they intended to rest their case was that double distress did not exist, a matter which has no proper bearing on the issue raised in the present case. It was further argued that a duty was laid on the defenders—if they did not choose to deliver in consequence of the arrestment—to have brought a multiplepoinding. It may be doubted, however, whether until the present action was raised there could in a proper sense be double distress, and the question falls to be determined in relation to the facts as they existed when the demand was made, not when the action was raised. In any view, the pursuers had the obvious remedy of bringing a multiplepoinding, though, if they had done so, it could scarcely be held as a means of deciding the question really raised in the present action, namely, whether or not the defenders would have been justified in setting at nought au arrestment laid in their hands, provided the same were sufficiently specific, ns I think it was, to throw a nexus over the cattle.— North British Railway Co. v. White, 9 R. 97; Matthews v. Fawns, 4 D. 1242; Metzenburg v. Highland Railway Co., 7 Macph. 919.”

The pursuers appealed, and argued—The case raised an important question, viz., Does an arrestment fundandœ jurisdictionis impose a nexus on the property arrested? This question, while it had never been authoritatively settled, fell, on the authority of certain dicta in the following cases, to be answered in the negative. — Trowsdale's Trustee v. Forcett Railway Co., November 4, 1870, 9 Macph. 88, opinion of the Lord Justice-Clerk, p. 92; Lindsay v. London & North-Western Railway Co., November 20, 1855, 18 D. 62—Lord Deas in this case was of opinion that the operative nexus for security and payment falls to be laid on afterwards by arrestments on the dependence and in execution— Cameron v. Chapman, March 9, 1838, 16 S. 907, Lord President, p. 918; Bell's Conveyancing, vol. i. 543; Menzies' Conveyancing, 2d ed. 306; Bell's Comm. vol. ii. 65. There were only two cases in which opinions would be found stated from the Bench affirmatory of the question, viz.— Garlberg, &c. v. Borjesson, &c., November 21, 1877, 5 R. 188; White v. Spottiswoode, June 30, 1846, 8 D. 952. There being, then, no nexus imposed on the arrested cattle by the arrestment to found jurisdiction, the defenders ought to have complied with the order for delivery. Further, there was nothing to identify the cattle arrested as those to which this action applied, except the marginal note on the schedule of arrestment, which could not be held as sufficient specification.

It appeared that on the 31st of January Messrs Sheehan & M'Gibbon had executed an arrestment on dependence of an action against Meere, and that subsequently a petition had been presented to the Sheriff at the instance of Sheehan &M'Gibbon, Malone&M'Gibbon, and Meere, the prayer of which was to have the cattle sold. This had been done, and the price consigned in Court.

At advising—