Scottish Court of Session Decisions

James Eaglesham & Company were manufacturers at 128 Ingram Street, Glasgow. Between 5th March and 11th October 1888 a person in their employment named James Patrick stole from their premises a quantity of goods, and on 22nd October he pled guilty under an indictment charging him with the theft thereof. The stolen goods were given into the charge of Adam Dickson, custodier, Central Police Office, Glasgow.

Eaglesham & Company brought an action in the Sheriff Court of Glasgow for delivery to them of the stolen goods as being their property. They called as defenders the said Adam Dickson, and a number of pawnbrokers with whom the goods had been pledged. Upon 1st December 1888 the Sheriff granted warrant to cite the defenders, and ordained them, “if they intend to show cause why the prayer of the petition should not be granted, to lodge in the hands of the Clerk of Court at Glasgow a notice of appearance within the induciæ of citation hereon, under certification of being held as confessed.” No appearance was made for any of the defenders.

Upon 20th December the Sheriff-Substitute ( Lees) dismissed the petition, and in respect no appearance had been entered by any person called as defender, found no expenses due.

“ Note.—So far as my experience goes, cases of this kind are always raised in the form of a multiplepoinding, and there is good ground for such form of action being adopted. The main defender Mr Dickson is custodier under the Glasgow Police Act of property taken possession of in the public interest in criminal cases; therefore the property which he holds in such circumstances comes into his possession in no casual way or under any wish or act of his own, but under the duty imposed on him by a public statute. That being so, it would be an improper addition to his duties to cast on him the onus of seeing that the proper defenders have been called into the field, and that he is free from any risk of subsequent question at any party's instance. Now, the form of action adopted here will not give him the necessary protection. It is an action for delivery. But I apprehend it is not for Mr Dickson to decide who is entitled to the goods. It is for the Court to do so, and more than that, I have the very gravest doubts as to the competency of a claim by the pursuer against Mr Dickson for delivery of the goods. The proper form of action is a multiplepoinding. Such an action amounts to an application to the Court to distribute the goods which are the subject of it amongst the parties who may have right thereto, whether they are called to the action or not. In such a form of action the

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Court takes such steps as it thinks proper by advertisement or otherwise to find out who may have claims upon the goods, and all the holder of the subject in medio has to do is to see that it is correctly stated, and he leaves the Court to take what further steps of procedure it thinks proper. More than that, on simply putting the subject in medio into the possession of the Court he gets an order of protection against all possible claims that may be made in the future in regard to the subjects, and he is therefore relieved from any anxiety as to the procedure that may be taken. The only reason assigned for deviating from the usual form of action on the present occasion is that it may save expense; for if Mr Dickson is satisfied, as no other defender has entered appearance, the pursuer will get what he wants. But this amounts to imposing on Mr Dickson a duty that should be discharged by the Court, and, as a matter of fact, if he thought fit to avail himself of the right of bringing a multiplepoinding, the result would only be the extra expense of the present action and further delay. On all these grounds, but mainly in respect of the incompetency of subjecting statutory officials to direct actions against them, I cannot sustain the competency of the present case.”

Upon appeal the Sheriff ( Berry) adhered.

The pursuers appealed to the Second Division of the Court of Session. The Court sustained the appeal and granted the application.