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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Margaret Thomson v William Simson. [1774] Hailes 591 (28 July 1774)
URL: http://www.bailii.org/scot/cases/ScotCS/1774/Hailes010591-0338.html
Cite as: [1774] Hailes 591

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[1774] Hailes 591      

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PRESCRIPTION - MULTIPLEPOINDING.
Subject_3 A process of multiplepoinding, brought in consequence of an arrestment, preserves the arrestment from prescribing, although the arrester's interest is not produced in the multiplepoinding.

Margaret Thomson
v.
William Simson

Date: 28 July 1774

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[Faculty Collection, VI. 343; Dictionary, 11,049.]

Monboddo. A multiplepoinding has the same effect in moveables that a ranking and sale has in heritable subjects. But as, in the latter case, the creditors must produce their grounds of debt in order to save from prescription, so also, in the former, the raising of a multiplepoinding by the debtor is not equivalent to the creditor producing the ground of debt. The decision 1732 seems an erroneous decision.

Gardenston. Should not think that a lawyer's acknowledgment was sufficient without any thing more; but I think that a production is necessary, in order to interrupt prescription.

Kaimes. An arrestment makes a subject litigious. The law says that arrestment shall prescribe in five years; that is, that the common debtor may after that time give away the goods without breach of arrestment. This is not the case here. I doubt how far the arrestment 1761 is prescribed, so as to give a preference to Simson.

Coalston. The objection is negative prescription. That must be clearly made out. There is one decision in point: it has gone abroad, and the public may have been guided by it in the conduct of affairs. Dangerous to pronounce a contrary decision.

President. The decision 1732 is not inconsistent with principles.

Auchinleck. Will the calling a person in a multiplepoinding stop the course of prescription, either short or long? There is no document taken on this arrestment.

Kaimes. There is a good excuse offered for not doing diligence. The subject was litigious: What could the arrester do? I would have advised him to lie by till it could be known whether he could draw any thing. Besides, there was no use for a furthcoming: the question might have been determined in the multiplepoinding.

Kennet. I think that the process is sufficient to interrupt prescription as being seen and returned. I hold it as seen and returned, for all the creditors.

Coalston. No man is obliged to bring an action merely to interrupt prescription.

Gardenston. When an entail is in the course of being contravened, and a separate title set up, a remote heir of entail may bring an action, and must bring an action to interrupt prescription; but I am moved with the decision 1732.

Monboddo. In the case put by Lord Gardenston, the remote heir has an interest to set aside the right of the person in possession.

On the 28th July 1774, “the Lords found the prescription sufficiently interrupted.”

Act. G. Ogilvy, H. Dundas. Alt. J. Boswell, A. Lockhart. Reporter, Auchinleck.

[This seems a narrow case. It was carried through by the authority of the decision, 20th July 1732, Crawfurd against Simson, observed in Dictionary, vol. II., p. 117. I wished to have seen the papers in that cause, for I suspected that in it the arrester had claimed, though the collector omitted that circumstance. The Court however inclined to give implicit credit to the collector.]

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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