Scottish Court of Session Decisions

An action of multiplepoinding was raised for the purpose of determining the persons entitled to a sum of £209, 4s. 9d. due by the nominal raisers, the Corporation of the City of Glasgow, acting under the Glasgow Corporation Waterworks Acts 1855 to 1895, to the common debtor, George Watson junior, builder, Glasgow. Claims for a ranking primo loco were lodged by four creditors of George Watson junior, who had used separate arrestments in the hands of the Corporation, viz., Sir Archibald Edmonstone, who claimed £80; James Rankin, who claimed £16, 17s. 8d.; the Garscube Brick Company, Limited, who claimed £20, 12s. 7d.; and Henry Campbell, who claimed (a) £51, 1s. 4d., with interest thereon from 20th August 1896 till paid, and (b) £7, 15s. 11d. A claim was also lodged by Dugald M'Alister, accountant, Glasgow, as trustee on the sequestrated estates of George Watson junior, in which he admitted the claim of Sir Archibald Edmonstone, but questioned those of the other three claimants, on the ground that their arrestments were invalid and had attached nothing.

The nature of the arrestments and the contentions of the parties are fully set forth in the note to the Sheriff-Substitute's interlocutor.

On 11th November 1897 the Sheriff-Substitute ( Balfour) pronounced the following interlocutor:—“Repels the claim for Henry Campbell, the Garscube Brick Company, Limited, and James Rankin: Ranks and prefers the claimant Sir Archibald Edmonstone primo loco on the fund in medio for £80, in terms of his claim; and secundo loco ranks and prefers the claimant Dugald M'Alister to the balance of the fund in medio; and authorises the Clerk of the Court to pay over said fund accordingly: Finds no expenses due.”

Note.—“In this multiplepoinding questions arise among the competing claimants as to the validity of the arrestments used in the hands of the arrestees against the common debtor. The common debtor (George Watson junior) had a contract with the Corporation of the City of Glasgow, acting in execution of the Glasgow Corporation Waterworks, and it is the balance due under that contract which the claimants have sought to arrest in the hands of the Corporation. There are three arrestments to which objections have been taken. There is a fourth arrestment, at the instance of Sir Archibald Edmonstone, but it seems to be conceded on all sides that that arrestment is valid, and it affords a remarkable contrast to the other arrestments, and illustrates the defects in them. That arrestment is laid in the hands of the Corporation of the City of Glasgow, and Robert Wilson, their treasurer, and it has been executed by leaving for the Corporation in the hands of their treasurer, within their place of business in Corporation Buildings, a copy of the arrestment directed for them for their behoof, and by sending a copy of the arrestment to the Corporation in a letter addressed to them to their place of business, and by delivering a copy to Robert Wilson personally. This appears to me to be an unassailable arrestment.

The other three arrestments are somewhat like one another. The first is at the instance of Henry Campbell, and it is laid in the hands of the Lord Provost, Magistrates, and Council of the City of Glasgow, Water Department, City Chambers, Glasgow, and it is executed by leaving a copy in the hands of a servant within the business place of the arrestees in City Chambers, and by transmitting a duplicate contained in a postal letter addressed to the arrestees at their business place.

The second arrestment is at the instance of the Garscube Brick Company, Limited, and it is laid in the hands of the Corporation of the City of Glasgow, acting under the Corporation Water Trust, and it is executed by leaving a copy with a servant within the arrestees' place of business in the Municipal Chambers, George Square, Glasgow, town clerk's office, and by posting a copy to the arrestees to their said place of business; and the execution contains an intimation that the arrestment is meant to attach all funds due to George Watson junior, under a contract executed by him, for work done at the Hydraulic Power Station, High Street, Mr Gale engineer.

The third arrestment is at the instance

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of James Rankin, and is laid in the hands of the Lord Provost, Magistrates, and Councillors of the City of Glasgow, as Commissioners for the Glasgow Corporation Waterworks, and it is executed by leaving a copy for the arrestees in the hands of a servant within their treasurer's office, Municipal Buildings, Glasgow, and there was no copy posted.

The first objection taken to the first and third arrestments is that the designation of the arrestees is wrong. According to the Police Act of 1895, the Corporation means ‘The Lord Provost, Magistrates, and Council of the City,’ and the Corporation is thereafter to be known and called as ‘The Corporation of the City of Glasgow,’ and it was maintained that the designation ‘The Lord Provost, Magistrates, and Council (or Councillors) of the City of Glasgow,’ is erroneous, and invalidates the arrestments. There is not much in this objection, as the arrestees are distinctly enough defined by naming the body which the statutory title is said to mean, viz., ‘The Lord Provost, Magistrates, and Council of the City,’ and the objection was not seriously insisted on.

Another objection was stated to the three arrestments, viz., that they were in the hands of a servant, and it was maintained that the arrestments ought to have been laid either in the hands of the arrestees in Council assembled, or in the hands of the treasurer or town clerk. There is a great deal of authority as to the proper mode of laying arrestments in the hands of a corporation. In Keir v. Menzies, M. 738, it was held that arrestment in the hands of the treasurer of an incorporation is a competent mode of affecting a fund in the hands of the incorporation; and in Dalrymple v. Bertram, M. 752, it was held that in arresting in the hands of a corporation the legal method is to cite the representatives by delivering a copy to them at their meeting, or by executing against each of them singly and separately. In Bell's Principles, section 2276, note ( h), it is stated that in the case of corporations arrestments should be laid in the same way as intimations of assignations, and at 1464 a it is stated that intimation ought to be made to the treasurer, and the case of Keir v. Menzies is cited. If the intimation of an assignation is a correct test of the validity of an execution of arrestment, it is clear beyond doubt that intimation of an assignation to the servant of a corporation has no effect whatever, unless he is the proper representative of the arrestees in the matter to which the arrestment relates. To the same effect are the dicta in Bell's Commentaries, ii., page 71, Bell's Dictionary, page 67, Bell's Lectures on Conveyancing, page 313, and Green's Encyclopædia, page 315. The case of Macdonald v. Reid, 9 R. 211, shews that an arrestment against the commissioners of police for a burgh must be laid in the hands of the official who has a right to pay away the funds of the burgh. This was to a certain extent a special case, because it was based on the construction of the Police Act of 1850; but it throws light upon the party in whose hands an arrestment should be laid as representing a corporation, and the general remarks of the Lord President are of importance. The arrestment of Sir Archibald Edmonstone has been laid in the hands of the treasurer, following the lines of the above-mentioned cases, and I know of no authority for holding that an arrestment in the hands of a servant, without stating who the servant is, is a valid arrestment. The servant might be any person ranging from an office boy or a hall attendant to the treasurer or town clerk, and if such an arrestment was held to be good, it would lead to the greatest informality and looseness. The use of arrestments in the hands of a servant can have no effect, as the corporation or their treasurer might pay away the funds without the knowledge of the arrestee.

It was maintained that the posting of the letters in the cases of Campbell and the Garscube Brick Company validated the arrestments, in terms of sub-section 5 of the 12th section of the Sheriff Courts Act 1876. That sub-section provides that an arrestment shall be ineffectual when the schedule of arrestment shall not have been personally served on the arrestee, unless a copy of the schedule shall also be sent to the arrestee through the post. It is clear, however, that the posting in that case is only supplementary to the first arrestment, which has not been personally served on the arrestee, and if that first arrestment is bad, the posting does not cure it.

The result is that Sir Archibald Edmonstone falls to be preferred primo loco to the fund, and the trustee on Watson's estate to the balance of the fund.”

The claimants, Campbell, the Garscube Brick Company, Limited, and Rankin, appealed, and argued—The three arrestments were valid. They were all practically alike except in this particular, that the arrestment of James Rankin had not been posted. The reason of this was that the action was in the Debts Recovery Court, and the Sheriff Court Act 1876 applied only to proceedings in the ordinary Sheriff Court and not to actions in the Debts Recovery Court. But even if the posting had been omitted in all the cases, the arrestments would have been valid. It was common practice that arrestments were made in the hands of firms and private companies by delivering the arrestment to the servant of the firm or company and it would be an absurd result if the same procedure was invalid in the case of an incorporation. In Keir v. Creditors of Menzies, January 10, 1739, M. 738, it was held that arrestment in the hands of the treasurer of a corporation was a proper method, but this case was no authority for the proposition that arrestment in any other mode was invalid. In the case of Dalrymple v. Bertram, June 23, 1762, M. 752, it was difficult to determine whether the statement at the end of the case was the judgment of the Court or the opinion of the reporter. If the former, the decision was not only inconsistent with Keir but had been abrogated by legal practice extending

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over a long period— Bishop v. Mersey and Clyde Steam Navigation Company, February 19, 1830, 8 S. 558; Aberdeen Railway Company v. Ferrier, January 28, 1854, 16 D. 422. The case of Macdonald v. Reid, November 18, 1881, 9 R. 211, founded on by the Sheriff-Substitute, was not in point. In that case arrestment was used in the hands of the wrong official of the corporation; in the present case the fund was arrested in the hands of the corporation itself. In the case of a corporation the arrestments could not be served personally in a literal sense, and the servant stationed at the proper place of domicile to receive letters and documents addressed to the corporation was the proper representative of the corporation. In any event, in the case of the claimants Henry Campbell and the Garscube Brick Company, Limited, as service through the post had also been made, in terms of the Sheriff Court Act 1876, sec. 12, sub-sec. 5, their arrestments were valid.

Argued for the claimant M'Alister—The Act 1540, cap. 75, did not allow an arrestment of money in the hands of an individual to be effectively made by leaving it with a servant at his house without first attempting to find him. In the same manner there was no authority for the proposition for which the appellants contended that an arrestment would be effectually laid on in the hands of a corporation which was simply handed to an officer of the corporation without any endeavour to interview anyone representing the corporation or to see the corporation themselves. The cases of Dalrymple, Keir, and Macdonald established this, that in order to make an effectual arrestment of funds in the hands of a corporation you must either serve it upon the corporation when they were sitting, or serve it upon the treasurer, who was the custodier of the funds of the corporation. The Sheriff Court Act 1876, sec. 12, sub-sec. 5, did not apply to corporations, as it contemplated a search being made for a person and that search failing. The arrestments of the appellants were therefore invalid, and the judgment appealed against was right. Even if was held to apply, the arrestment of James Rankin was bad, as no copy of the arrestment had been made through the post, and the Sheriff Court Act applied to all proceedings in the Sheriff Court, including those under the Debts Recovery Act.

At advising—