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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Grant, Petitioner [1867] ScotLR 5_119_1 (14 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0119_1.html Cite as: [1867] SLR 5_119_1, [1867] ScotLR 5_119_1 |
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Page: 119↓
A ship, formerly the property of B, stood registered in names of A and the pupil children of B. A creditor of B raised a petititory action against him; arresting the ship ad fundandam jurisdictionem, and on the dependence. He also raised a declarator and reduction against the pupil children, to reduce the bill of sale to them, and declare that B was the true owner of the share in the ship standing in name of his pupil children, and arrested the ship to found jurisdiction. On petition of B, as administrator-in-law for his children, the arrestments recalled.
This was a petition for recal of arrestments, presented by John Grant, timber merchant, Cardiff, county of Glamorgan, South Wales, as administrator-in-law for Catherine Flora Grant and others, his pupil children.
Page: 120↓
The petition bore that in 1855 the petitioner purchased a vessel, named the Skylark, and was registered as sole owner: that in February 1864 he sold the vessel to a person named Macdonald, conform to bill of sale, which was entered in the registry of vessels at Liverpool: that on 29th August 1864 Macdonald sold 32–64 parts of the vessel to one Mackenzie, and, on 1st September, the remaining 32–64 parts to the children of John Grant: and that the petitioner's children had, since November 1861, been the sole registered owners of the half-share of the vessel, while Mackenzie was the sole registered owner of the other half. It appeared, further, from the petition, that on 29th June 1866, the respondent Alexander Murdoch Grant brought an action against the petitioner in the Court of Session for payment of a sum of money found due by the petitioner to the respondent in certain proceedings in the Court of Chancery; and, in order to found jurisdiction against the petitioner, arrested the vessel, then lying at Dunvegan, in Skye, ad fundandam jurisdictionem, in virtue of letters of arrestment, dated 23d Juno 1866. On the dependence of this action the vessel was arrested, at the respondent's instance, on 13th September 1866. In December 1866 the respondent raised an action of declarator and reduction in this Court against Macdonald and the petitioner's children, for the purpose of having it declared that the bill of sale by John Grant to Macdonald was solely for behoof of John Grant, and that the bill of sale by Macdonald to Grant's children conferred on them no right in the vessel, and that John Grant was sole owner of a half share in the vessel; and for reduction of the bills of sale. The respondent, in order to found jurisdiction against the petitioner's children, arrested the vessel on 11th December 1866, jurisdictionis fundandœ causa. The petitioner now craved recal of these arrestments.
Answers were lodged by Alexander Murdoch Grant, in which it was alleged that the bill of sale by John Grant to Macdonald was a mere device to protect the vessel from the respondent and John Grant's other creditors; that, after John Grant had raised money on the vessel by a sale of onehalf share to Mackenzie, a re-conveyance of the vessel was made in favour, not of John Grant, but of his children; but these children were all in pupilarity, residing with their father; they had no means to purchase any part of the vessel, nor was any price paid by or for them to Macdonald; and, as Macdonald held the vessel merely in trust for Grant, any payment by Grant's children to Macdonald would just have been a payment to Grant himself.
Counsel were heard on the petition and answers.
W. N. Maclaren ( Gifford with him) for petitioner.
The case of Duffus and Lawson v. Mackay, 13th February 1859, 19 D., 430, was cited.
Pattison and A. Nicolson in reply.
Lord President—I think it is necessary to distinguish between the arrestments in this case. There are arrestments, in the first place, against John Grant, the father of these children, for the purpose of founding jurisdiction, and there are other arrestments on the dependence of the petitory action against him, and the subject arrested is the ship Skylark. On the face of the register, the Skylark does not belong to that person either in whole or in part, and that appears to be conclusive in so far as regards those arrestments. They are null because they arrest a vessel which is not the property of the person against whom the arrestments are directed.
But then we come to the arrestments for founding jurisdiction against the defenders in the declarator and reduction. I must take that action, and the arrestments on which it is founded, as standing alone, for the other arrestments being ineffectual, the action founded on them is gone also for want of jurisdiction, and, therefore, there is no competent process in this Court or in this country, except the declarator and reduction. Now, what is the object of that action? It is to reduce, set aside, and declare invalid the title to the ship which stands in the petitioner's children, who are called as defenders in the reduction. The arrestments are laid on for the purpose of giving jurisdiction to pronounce decree of reduction; but the very decree of reduction takes away the ground of jurisdiction, and therefore the whole thing is absurd. It has no meaning or substance. There are strong allegations of fraud made against the petitioner and other parties, and it may be that these allegations are well founded. It may be quite true that this ship does not belong to these children, but to their father; but we are not shutting out the creditors of the petitioner from a remedy by recalling these arrestments. There are courts in England open to them, and by refusing to entertain these proceedings, we only tranfer the solution of these questions to England, which is not only legitimate, but also most expedient; and, therefore, I am not disturbed at being led by authorities and principle to recal these arrestments.
Arrestments recalled, with expenses.
Solicitors: Agent for Petitioner— J. M. Macqueen, S.S.C.
Agent for Respondent— James Somerville, S.S.C.
