Scottish Court of Session Decisions

Lord President—I have no doubt that the judgment of the Sheriff-Substitute in this case is right.

These gentlemen were subjected to double distress. On the one hand, certain parties were demanding delivery of a bill and cheque which they alleged was theirs; while on the other hand arrestments were used by other parties in the hands of the holders of these documents. If that is not double distress, I do not know what is.

In these circumstances the undoubted right of the holders was to raise a multiplepoinding, and they are entitled to recover the expenses of that action from the person who was found entitled to delivery.

Lord Mure—This is a clear case of double distress. The raisers could get the question of the right to these documents settled only by raising a multiplepoinding.

Lord Shand—Messrs Dill, Wilson, & Muirhead did not hold the bill and cheque which are the subject of the action as their own property, but as belonging to the English firm of Joseph Ricardo & Company. A creditor used arrestments in their hands, the effect of which was to require them to retain the documents subject to that diligence. It is said that Dill, Wilson, & Muirhead should have ignored the arrestments, and handed over the bill and cheque to the owner. But I do not think they were bound to take that course or to run any risk by settling for themselves the question whether the diligence had the legal effect of laying a nexus on the documents, and entirely disregarding the arrestments. The owner might have presented a petition to get the arrestments loosed. An application to the Court at his instance would have been at once granted. Without taking this step he or his trustees demanded that his documents should be delivered to him. In these circumstances I think the holders were entitled to raise this action. I confess I am not prepared to follow the decision in the case of Mitchell which has been cited, and could not have concurred in the opinions of the majority of the Court in that case. If it could have been made out that the real raisers had been acting collusively with the arresters, and had induced them to come forward in order to prevent the owner from getting up the documents, and that this had been done for the purpose of causing embarrassment or expense, it would have been different. But there is nothing of that sort here.