Shankland & Co. v. M'Gildowny [1912] ScotLR 564 (15 March 1912)

Shankland & Co. v. M'Gildowny [1912] ScotLR 564 (15 March 1912)

Arrestment to found jurisdiction is only valid where, at the time of arrestment, the arrestee has a present liability to account to the common debtor. In this case, the Sheriff-Clerk held the consigned fund subject to court order, with no present debtor-creditor relationship to M'Gildowny. The fund was not unconditionally due to him, making the arrestment ineffectual for founding jurisdiction.

Citation
[1912] ScotLR 564
Parties
Pursuer: Shankland & Company; Defender: H. M. M'Gildowny
Jurisdiction
Scotland
Judgment Date
15 March 1912
Procedural Posture
Civil / Appeal From Sheriff Court, Inner House First Division
Outcome
appeal sustained, action dismissed
Legal Topics
Arrestment, Jurisdiction, Arrestment Ad Fundandam Jurisdictionem, Consignation, Sheriff Courts (scotland) Act 1907 Section 6
Civil Procedure Commercial Law Arrestment Jurisdiction Arrestment Ad Fundandam Jurisdictionem Consignation Sheriff Courts (scotland) Act 1907 Section 6

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 14 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Shankland & Company

Pursuer

H. M. M'Gildowny

Defender

Procedural Posture

Civil / Appeal From Sheriff Court, Inner House First Division

Legal Issues

  1. 1 Whether arrestment in hands of Clerk of Court ad fundandam jurisdictionem is sufficient to found jurisdiction against a foreign defender
  2. 2 Whether the consigned fund was arrestable as a debt due to the defender

Ratio Decidendi

Arrestment to found jurisdiction is only valid where, at the time of arrestment, the arrestee has a present liability to account to the common debtor. In this case, the Sheriff-Clerk held the consigned fund subject to court order, with no present debtor-creditor relationship to M'Gildowny. The fund was not unconditionally due to him, making the arrestment ineffectual for founding jurisdiction.

Court Disposition

appeal sustained, action dismissed

Orders

  • Recall interlocutor of Sheriff dated 2nd August 1911
  • Affirm interlocutor of Sheriff-Substitute dated 13th March 1911