HeadNote:
In 1825, the late J.J. Fraser, W.S. raised an action against Robert Hill, W. S. narrating, that he was due him L.2000, more or less, as per accounts, for business done and money advanced from 1821 to 1825, during which period Fraser, acting as his agent, came under several obligations for his behoof, and concluding for payment of what should be ascertained as the true balance, and relief from said obligations. On 12th November 1835, the record in this action was closed, and on 25th November, the Lord Ordinary allowed certain additional accounts and vouchers produced by Fraser to be seen, and appointed parties to debate. On 29th January 1836, Hill and his trustee, Mr William Paul, accountant, raised an action of multiplepoinding, in which, after narrating the nature and conclusions of the former action, the summons proceeded to set forth, that Fraser had, on 27th July 1830, assigned to the late Hugh M'Queen, W. S. L.700 for business done and cash advanced by him to Hill, and conveyed to him ‘the whole vouchers and instructions of the said debt and sums of money, and of all right of lien and hypothec, and all other rights and obligations whatsoever, which he held in security of the same;’ that Fraser had, on 5th December 1831, assigned to Lieut.-Colonel Gordon of Cluny, for himself, and as committee for his sister, L.700, ‘part of, and the first and readiest part of the sum of L.2000, contained in and due by accounts for business done and money advanced by Fraser for and on account of Hill, conform to accounts thereof duly rendered to Hill, commencing in the year 1821 and ending 29th April 1825, together with the grounds of the said debts, and an action raised at the instance of Fraser before the Court of Session against Hill for payment of the same; and all that has followed or may be competent to follow thereon, and all obligations and securities held by Fraser for the said debt to the extent of the foresaid sum of L.700;’—that the assignations were intimated to Paul during the dependence of Fraser's action; ‘that the pursuers are ready and willing to pay to Fraser, or any others who can show right thereto, the true balance on Fraser's account, but they are daily harassed at the instance of sundry persons, creditors or pretended creditors of Fraser, particularly Macqueen and Gordon, who have interpelled them, by intimating the assignations above narrated, and who will neither appear for their interests in the said action, nor renounce their said assignations.’ The multiplepoinding concluded in the usual form. The Lord Ordinary, (Moncreiff,) pronounced the usual interlocutor in the multiplepoinding, and remitted it, ob contingentiam of Fraser's action, to Lord Fullerton, who (June 30. 1836) conjoined the processes, held the summons of multiplepoinding as a condescendence of the fund in medio , allowed Colonel Gordon to lodge objections thereto, if he saw cause, and appointed all concerned to give in condescendences of their claims, in order to a discussion of their preferences. No claim was lodged by the representatives of Macqueen, but objections having been lodged by Gordon, and answers thereto by Paul, the Lord Ordinary (5th March 1838) pronounced the following interlocutor, which became final: ‘The Lord Ordinary having considered the objections and answers, and heard parties' procurators, finds, that the present action of multiplepoinding is brought by the raiser only for the distribution of such sums, if any, as shall be found to be due by him in a certain ordinary action libelled: finds, that in these circumstances the raiser cannot be called on to condescend on any thing but the fund generally described in terms of the summons, viz. in the sum, if any, which may be decerned for against him in the said ordinary action; therefore, repels the objections, reserving to the objector and all parties concerned their right to insist in the conclusion of the said ordinary action, that the sum, if any, there found due, shall form the fund in medio in the present multiplepoinding.’
Colonel Gordon, as committee for his sister, raised an action of count and reckoning against Fraser, on the dependence of which he arrested, on 29th April 1834, in the hands of Paul, as Hill's trustee, L.8000, more or less, as due by Paul qua trustee to Fraser.
In February 1838, Gordon raised, in name of Hill and Paul, the present action of multiplepoinding, on the narrative of the action at Fraser's instance, and of the multiplepoinding at their instance. ‘That besides the accounts founded on in the said action, the pursuers are indebted to Fraser in a certain sum of money, as the balance arising due to him on certain other accounts for business done and money advanced by him, for and on account of Hill, conform to accounts herewith produced and referred to, whereof a precise and articulate condescendence shall be lodged in the course of the process to follow hereon: That the pursuers are ready and willing to pay to Fraser, or any others who can show right thereto, whatever sum our said Lords shall find to be the true balance upon Fraser's said accounts and advances for Hill, not comprehended under the said action, but they are daily harassed at the instance of sundry persons, creditors, or pretended creditors and assignees of Fraser, particularly Gordon, for himself, and as committee for his sisters, and the trustees of Macqueen, who have interpelled the pursuers by arrestments, and intimated assignations: That as the pursuers are only liable in once and single payment of the said sum of money, to be found to be the true balance on the said accounts, it is necessary that the several persons making claim thereto should be convened in this process, that they may produce their grounds of debt or other interests, and dispute their preferences to the same: Therefore it should be declared, that the pursuers are only liable in once and single payment of the balance which shall be found due to Fraser on the said accounts, not comprehended under the said action raised and insisted in by him, and not produced therein before the record therein was closed, to the person or persons who may have best right thereto.’ The nominal raisers lodged the following objections to this multiplepoinding: 1 st , The assignation of the real raiser being limited to the debt and sum concluded for in the original action at Fraser's instance, the present action is incompetently raised by him for the amount of accounts other than those included in the first action. 2 d , The action is farther incompetent, because there is no double distress to warrant a multiplepoinding. 3 d , The dependence on which the arrestment was used has never been brought to a close, so as to warrant a process of forthcoming at the instance of the arrester. The arrestment was used long after parties had joined issue in the action at the instance of Fraser, concluding for the sums alleged to be due for the whole of his agency, during the period to which the present action relates, so that the question respecting that agency was then litigious between the creditor and the alleged debtor on that account. The arrestment, therefore, cannot enable Colonel Gordon to insist for an accounting different from that to which the objectors are liable in the action at the instance of Fraser.
The Lord Ordinary, (8th March 1839,) ‘Finds, that this action of multiplepoinding, raised in the name of Messrs Hill and Paul, is truly brought by Colonel Gordon, for the purpose of establishing against the nominal raisers a claim for the amount of accounts said to be due by the nominal raisers to James John Fraser: Finds, that the title of the real raiser to bring this action rests, first, on an assignation in his favour by James John Fraser; and, 2 dly , on an arrestment used by him as committee for Mrs Johanna Gordon or Dalrymple, in the hands of the nominal raisers, on the dependence of an action raised by him in that character against the said James John Fraser: Finds, that the assignation only conveys to the real raiser the accounts pursued for in a separate ordinary action insisted in by Fraser against Messrs Hill and Paul, in which the record has been closed, and therefore does not constitute a title to bring the present multiplepoinding, confessedly intended to establish against Messrs Hill and Paul various accounts which are not included in the separate action: And farther, finds, that the arrestment, being merely an arrestment on a dependence, does not constitute a title to insist in the form of a multiplepoinding, in an action which, against the said parties, the nominal raisers, is substantially equivalent to an action of forthcoming: Therefore, sustains the objections of Messrs Hill and Paul to the title of the real raiser, dismisses the action, and decerns: Finds the real raiser, Lieutenant-Colonel Gordon, liable in expenses, and allows an account thereof to be given in, and to be taxed by the Auditor.
’ Colonel Gordon reclaimed and argued ,—that wherever there are competing interests, it is competent for the holder of the fund, or those having an interest in it, to bring an action of multiplepoinding; Bell , 298. Paul might have raised a multiplepoinding, because the assignations had been intimated to him, and arrestment on the dependence had been used in his hands; Scott v. Drysdale, May 22. 1827, S. and D. vol. v. 643, new edit. 689; Stewart and Ballendene v. Stewart, 6th Dec. 1828, S. and D. vol. vii. 145. One object of a multiplepoinding is to obtain the security of consignation, and to that effect Gordon might have appeared in the action, if it had been raised by Paul; and though he might not have been in a situation to get decree, that fact does not affect the competency of the present action.
At advising,
The Court accordingly adhered , with additional expenses.
Lord Ordinary, Fullerton. Act. D. M'Neill, Pyper. Fleming & Johnston, W. S. Agents. Alt. Moir. John Hunter, W. S. Agent. B. Clerik.
Note .—There is at present, and has been for some time, an action in dependence at the instance of James John Fraser against Hill and Paul, for the sum of L.2000, being generally described in the summons as the amount of accounts of business to be produced in that action. After long delays the accounts were produced, and in that action the record has been closed. Colonel Gordon holds an assignation in security of the accounts pursued for in that action. He might, if he chose, have sisted himself in that action, and, for any thing known to the Lord Ordinary, he may do so still, and there make any competent attempt to open the record, for the purpose of introducing any accounts which may have been omitted. But, instead of making any such attempt, he has raised this multiplepoinding in the name of Hill and Paul, the defenders in the ordinary action, confessedly for the purpose of making good against these nominal raisers a liability for certain accounts, ‘ besides the accounts founded on in the said action .’ It appears to the Lord Ordinary that the assignation, being limited to the account pursued for in the ordinary action, does not confer on Colonel Gordon a title to raise such a multiplepoinding. And there is the less difficulty in sustaining the objections, that the only other claimants called hold an assignation no broader.
As to the arrestment, it is only on a dependence. It is not pretended that this could enable the party to bring a forthcoming; and the Lord Ordinary sees no authority for holding that a petitory claim, precisely to the same effect, can be insisted in the form of a multiplepoinding raised in the name of the arrestee. Whether other claimants, if called, might not appear and adopt the action, is a different question. But there is no such appearance here. Indeed, as has been already mentioned, the only other parties called are assignees, whose assignation as a title to raise this process is exposed to the same objection as that of Colonel Gordon. So that the present process is substantially brought against the nominal raisers by Colonel Gordon alone, to compel payment of a debt said to be clue by these nominal raisers, the arrestees, to James John Fraser. It differs, therefore, in no respect from an action of forthcoming.