Scottish Court of Session Decisions

On 1st September, 1834, a summons of multiplepoinding before the Sheriff of Perthshire was served, at the instance of Hepburn's trustees, on Mrs Margaret Duff or Greig, residing in Perth. The fund in medio was a debt contained in a bill for £500, due by the raisers to Mrs Greig, but affected by arrestments, and said to be liable to certain claims of compensation. Claims were lodged in the multiplepoinding, and, among others, a claim was lodged by Mrs Greig on 4th November. In the mean time she had raised a summons, on 11th September, before the Court of Session against Hepburn's trustees, for payment of the bill. The defenders pleaded lis alibi pendens, as the whole matter was under discussion before a competent tribunal, the Sheriff Court of Perthshire. The Lord Ordinary repelled the plea of lis alibi, and the defenders reclaimed. Before the note came to be advised, the pursuer brought an advocation ob contingentiam.

Cuninghame, for defender—Though the Sheriff Court is an inferior tribunal, yet, being competent to the process of multiplepoinding, which embraced the claim made in this summons, the plea of lis alibi is well founded, especially as the pursuer had appeared as a claimant in the multiplepoinding. Besides, where there was a liquid ground of debt, as in this instance, the debtor might be compelled at once to consign; and he could not be called to account to the same party in two courts at the same time.

Forsyth, for pursuer—The bill of advocation of the Sheriff Court process, ob contingentiam, is already passed, so that the plea of lis alibi has no longer any foundation.

Cuninghame, in reply—Though the bill is passed, yet, if the advocation be improperly brought, this Court will remit to the Sheriff to proceed in the multiplepoinding, and that advocation was only brought after the judgment was pronounced, which is now under review.