Scottish Court of Session Decisions

Crawford & Company were the proprietors of certain heritable subjects in Glasgow over which they had granted two bonds and dispositions in security.

In May 1882, Wallace, the first bondholder, raised an action of poinding of the ground, and subsequently entered into possession under a decree of maills and duties.

Crawford & Company thereafter became tenants of the subjects under an arrangement with Wallace.

In August 1882 the Scottish Savings Investment and Building Society, the postponed bondholders, raised a poinding of the ground in the Sheriff Court at Glasgow, in which Crawford & Company, as tenants of the subjects, appeared as defenders.

After a considerable amount of litigation decree was pronounced on 15th August 1883, but was limited to £40, being the amount of rent due by Crawford & Company for the year from Whitsunday 1882 to Whitsunday 1883.

In August 1884 this decree was extracted, and on 25th December 1884 the Savings Investment Society obtained a warrant of sale.

This action was thereupon raised in the Sheriff Court at Glasgow by Crawford & Company to have the Savings Investment Society interdicted from carrying away, selling, disposing of, or interfering with the articles poinded. The pursuers averred that before the decree of poinding was pronounced on 15th August 1883 they had paid to Wallace, the prior bondholder, the rent due by them for the year from Whitsunday 1882 to Whitsunday 1883. They produced receipts for the rent, dated two on 11th November 1882, one on 15th May 1883, and one on 12th June 1883. These receipts had not been founded on or produced in the original action.

The defenders pleaded—(1) That the action was incompetent in the Sheriff Court, being an action to review a Sheriff Court decree, and (3) Competent and omitted.

The Sheriff-Substitute ( Erskine Murray) on 7th February 1885 sustained the defenders' first plea-in-law and dismissed the action.

“ Note.—This action is one of interdict, and is to interdict the sale, under a poinding of the ground obtained by defenders in an action against the pursuers and others, of a number of specified articles. In that case the pursuer appeared, stated, and fought several defences, and an expensive proof ensued, and the proceedings lasted for a considerable time. Finally, on 16th June 1884 decree was given against the present pursuers, but in so far as concerned the liability of the articles poinded, to the extent of £40 only, being the rent due by pursuers for the year from Whitsunday 1882 to Whitsunday 1883. No plea of payment had ever been taken by them. But they now plead that they paid the rent to a prior bondholder, who had also poinded the ground, and produce receipts, dated, two on 11th November 1882, one on 15th May 1883, one on 12th June 1883, all long before the date of decree in question. If the Sheriff-Substitute had not sustained the first plea, he would have been inclined to sustain the defence of competent and omitted, as this point ought certainly to have been raised if they were going to defend the other case at all. But it seems clear that this action is simply equivalent to a suspension, and as such is incompetent in the Sheriff Court.”…

On appeal the Sheriff ( Clark) affirmed the foregoing interlocutor.

“ Note.—I have had very much difficulty in deciding this case, but have ultimately come to the conclusion that the Sheriff-Substitute is right. It would not be possible to entertain the action of interdict while the decree in the poinding of the ground stands unreduced, and it is not possible to reduce in this Court a decree which, in so far as this Court is concerned, has become final, without reviewing the same, which is ultra vires of the Sheriff. It is also observable that the pursuers, who made themselves parties

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to and defended in the poinding of the ground, allowed the decree to pass in the form which it bears without taking any objection, which they might have done on the very intelligible ground that the rent in question had already been paid. In these circumstances I am afraid the only remedy competent to the pursuers is by suspension, or some such procedure, in the Supreme Court.”

The pursuers appealed, and argued—A decree of poinding the ground was in a different position from other decrees, and was merely issued for what it was worth. In this case it was worth nothing as the tenants had paid their rents before decree was pronounced. The date of litiscontestation in the original action was 12th October 1882, when the record was closed, and at that date the facts on which the pursuers were founding in the process of interdict had not emerged. Therefore they did not constitute a defence which was competent and omitted.

The respondents argued—(1) This was merely an attempt to obtain review of one action in the Sheriff Court by means of another. This could not be done in the Sheriff Court unless there were res noviter— Thom, 10 D. 1254. (2) The defence was competent and omitted in the original action of poinding of the ground.

At advising—