Scottish Court of Session Decisions

On 3rd May 1910 the Colonial Mutual Life Assurance Society, Limited, having their registered office at Melbourne and their head office for the United Kingdom at 33 Poultry, London, pursuers and real raisers, brought an action of multiplepoinding against (1) John Brown, formerly residing in Edinburgh and then residing in Jersey City, near New York, U.S.A., who was described as common debtor, and (2) Poole & Company, accountants, Edinburgh, and Alexander Wilson Poole, accountant there, the sole partner thereof, who were described as “creditors or pretended creditors of the said John Brown,” all defenders, to have it found that they were only liable in once and single payment of the principal sum of £105, 10s., including cash profits, due under a policy in name of the common debtor effected with the pursuers. In terms of the policy this sum became payable within one calendar month after proof to the pursuers that John Brown had survived 21st March 1910, the date of the maturity of the policy. On or about 26th March 1910 the defenders Poole & Company used arrestments to the extent of £400 in the hands of the pursuers to found jurisdiction against John Brown and also on the dependence of an action in the Court at Edinburgh against him. In this action Poole & Company obtained decree for £272, 10s. with expenses. Following on this action they raised on 20th April 1910 an action of furthcoming in the Sheriff Court. The pursuers thereupon, on 3rd May 1910, raised the present action of multiplepoinding in which they stated that the sum due under the policy was claimed by John Brown, and that the arrestments used by Poole & Company to found jurisdiction were irregular in form. At the discussion in the Inner House it was stated at the bar that John Brown had sent to the pursuers from the United States a discharge dated 24th March 1910, on receipt of which they were entitled, if not interpelled, to pay the fund. It was also stated that the Sheriff-Substitute had, on 28th June 1910, dismissed

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the action of furthcoming on account of an irregularity in the arrestments, and that this interlocutor had been affirmed by the Sheriff on 19th July 1910.

The defenders Poole & Company and A. W. Poole lodged defences, in which they pleaded, inter alia—“(1) There being no double distress, the action is incompetent and should be dismissed, with expenses. (2) In respect that the defenders Poole & Company are alone entitled to the fund in medio, they should in the circumstances condescended on be ranked and preferred thereto with expenses. (3) In respect that the pursuers and real raisers have pled and established that the said arrestments ad fundandam jurisdictionem were invalid, they are barred personali exceptione from raising and insisting in the present action and should be found liable in expenses to the defenders.”

On 1st December 1910 the Lord Ordinary ( Ormidale) repelled the first plea-in-law for the compearing defenders, found the pursuers liable only in once and single payment, and allowed all parties claiming an interest in the fund in medio to lodge their condescendences and claims within fourteen days.

The defenders having obtained leave, reclaimed, and argued—There was here no double distress. The arrestment was bad before this action was raised, and even if it was good one arrestment would not entitle an arrestee to proceed with a multiplepoinding. No doubt double distress did not mean double diligence. It was enough if there were a depositary and two conflicting claimants. But here there was no common debtor and no competition. John Brown, described as such in the summons, was debtor to nobody but Poole & Company, and if he had a claim against the pursuers, these defenders could enforce their claim through him. Actions of multiplepoinding by trustees for exoneration and discharge, or by depositaries, were in a different position and did not require a common debtor — M'Dowall & Neilson's Trustee v. Haggart & Company, December 15, 1905, 8 F. 235, 43 S.L.R. 187. An arrestee could not bring a multiplepoinding unless there was a conflict among creditors. There was no case where an arrestee following on one arrestment had been held entitled to bring a multiplepoinding. Winchester v. Blakey, June 21, 1890, 17 R. 1046, 27 S.L.R. 811, was a typical illustration of the rule, as there was there a true competition of creditors for the fund in medio; on the other hand, in the case of Clark v. Campbell, December 12, 1873, 1 R. 231, 11 S.L.R. 138, which was analogous to the present case, the action was held incompetent.

Argued for the pursuers—The competency of the multiplepoinding was to be judged of as at the date of the summons, i.e., as at 3rd May 1910. At that date the policy had matured and become payable. Further, it was not decided that the arrestment was bad until long after the summons was raised, the date of the Sheriff-Substitute's judgment to this effect being 28th June, and of the Sheriff affirming, 19th July. There was, therefore, sufficient double distress here to justify a multiplepoinding, and it had already been decided in Scott & Others v. Drysdale, May 22, 1827, 5 S. 643 (689), that if there were competing claims one arrestment was sufficient. In the case of Clark v. Campbell, cit. sup., there was only a dispute between a creditor and his debtor, and the action was raised by the latter. The present case was analogous to Royal Bank of Scotland v. Price, January 24, 1893, 20 R. 290, 30 S.L.R. 339, and Fraser's Executrix v. Wallace's Trustees, February 15, 1893, 20 R. 374, 30 S.L.R. 421, and a fortiori of Commercial Bank of Scotland, Limited v. Muir, December 1, 1897, 25 R. 219, 35 S.L.R. 174, in all of which the competency of a multiplepoinding had been sustained.