proof is allowed, and it proceeds at once, without any other record than the petition and oath on the one side, and the declaration on the other. The petitioner begins the proof, as the burden of proving the intention of the debtor to abscond lies with him. Proof in regard to the debt is not taken. The utmost dispatch is given, the proof being generally taken on the day of the examination, or the day after it.

9. Order to find Caution.-On the intention to abscond being admitted or proved, the debtor is ordered to find caution de judicio sisti; or, if it be diligence that he is avoiding, caution to abide its issue. The caution to meet the action is coupled with the condition that the action be brought within a specified time, usually six months. If the debtor cannot find the caution he is committed to prison, and must remain there until the action is settled, provided it be brought within the specified time. So long a period as six months for bringing the action should not be allowed unless it be necessary, because the Court has held that when it is allowed the debtor cannot object to the creditor taking the full period, though there may be no occasion for it.(h) When the action is brought it seems that the judge has the control over the debtor's custody, and may liberate him on such terms as he finds reasonable.

When caution is found, the cautioners must be sufficient in the opinion of the Sheriff-Clerk to meet the penalty which will be due if the bond be forfeited. The bond obliges the cautioners to produce the debtor at any time during the progress of the action on getting reasonable notice. The creditor's right to call for the debtor ends on the process

(h) See case cited note (t).

being extracted. When the right is exercised, and the debtor appears, it is then for the Court to make such orders to prevent his absconding as may be reasonable. If the debtor be not produced, the bond is forfeited, and the penalty is having to pay everything that is due in the action.(¿)

Section XIX.-PROCESS OF MULTIPLEPOINDING.

1. Competency of Action.

2. Proceedings in Multiplepoinding. 3. Ascertaining the fund in medio.

4. Order for Claims.

5. Record and Disposal of the

Claims.

6. Late Appearance of Claimants.

1. Competency of Action.-When two or more persons are claiming from another something which he holds in his possession, the process by which the right to the thing, or to a share of it, may be determined, is called a multiplepoinding. The thing in dispute may consist either of money or of goods; or it may be a deed, but in the Sheriff Court it cannot be an heritable subject. As it commonly consists of money, it is called the fund in medio, whatever its exact nature may be. The action may be raised by trustees or executors for the purpose of obtaining a judicial discharge of their intromissions. (k) It may also be raised by any person who is subjected to competing claims. In this case the essence of the action is that the holder be subjected to at least two claims; that is, that there be what is called double distress. A claim of the nature of a debt

() Muir v. Collett, 23 Nov. 1866, distress is not necessary. 5 Macph. 47.

(k) Dunbar v. Sinclair, 14 Nov. 1850, 13 D. 54. In this case double

It is

enough that the holders are unable to obtain their discharge without calling the claimants into court.

upon the fund (that is, a claim which goes to diminish the fund and not to demand a share of it), where the holder is competent and willing to dispute the claim, does not give rise to the kind of distress which authorises a multiplepoinding, because there the claim can be settled in an ordinary action at the instance of the claimant against the holder. (7) But even a claim of debt on the fund may make a multiplepoinding competent, if the claimant will not raise his action so as to have the question settled, and the holder is thus impeded in paying over the fund to those whom he considers to have right to it. (n) The action of multiplepoinding is one for the actual division of funds requiring to be immediately paid over. It is not meant for the settlement of questions of right which do not require to be carried into effect until a future date. Thus, a multiplepoinding is not a competent process for settling how a fund is to be divided at the death of a liferenter who is still in

life.(0)

2. Proceedings in Multiplepoinding.-The summons of multiplepoinding may be raised either by the holder of the fund or by one of the claimants; and, as the holder stands as nominal pursuer in all cases, the body of the summons must always tell who the real raiser is. (p) The defenders are the different claimants, so far as known to the raiser. If the pursuer be only nominally the raiser, the summons must be served on him also. (q) The summons specifies the amount or nature of the fund in medio, and asks that the pursuer

(1) Crokat v. Panmure, 8 June 1853, 15 D. 737; Mitchell v. Strachan, 18 Nov. 1869, 8 Macph. 154; compare Park v. Watson, 21 Nov. 1874, 2 R. 119.

(n) Blair's Trustees v. Blair, 12 Dec. 1863, 2 Macph. 285.

(0) Nimmo v. Murray, 14 May 1863, 1 Macph. 792.

(p) 16 and 17 Vict. c. 80, 2 8.

(9) A. S. 10 July 1839, 102.

shall be declared to be only liable in single payment to those having right, and concludes that the defenders shall produce their claims, and the pursuer be decerned to pay the funddeducting his expenses of process-in such way as may be just, and that such of the defenders as have no right be prohibited from troubling him in future.(r)

Appearance is entered in the usual way, but claimants on the fund may appear though not summoned.

3. Ascertaining the Fund in medio.-On the cause being called the first matter to be discussed is the existence and amount of the fund in medio. If the pursuer admits having it, and the defenders are satisfied with his statement of its amount, there will be no litigation on this point; but if these things be in dispute a record must be made up; and, in general, it will be necessary to order a condescendence (called, in this case, of the fund in medio) to be given in by the real or nominal raiser, and to allow the other parties to lodge defences. On this record the questions as to the fund in medio will be determined as in an ordinary action.

4. Order for Claims.-On its being admitted or established that there is a fund in medio, the next step is to find the pursuer liable only in single payment, and to order claims to be given in within a certain short space.(s) When the holder has no claim over the fund he is frequently ordered to consign it at this stage; and if he does consign it, a decree exonerating him is pronounced. If there be any doubt that all the claimants are in the field it is common at this time to advertise for claims.

(r) 16 and 17 Vict. c. 80, Sch. (A). (8) 16 and 17 Vict. c. 80, 8;

Connel v. Ferguson, 6 March 1861, 23 D. 683.

5. Record and Disposal of the Claims.--Any number of claimants claiming on the same grounds may state their claims on the same paper. The claim is called, technically, a condescendence and claim, and sets forth the grounds of the demand in the same way as in an ordinary condescendence. Pleas in law are added as usual, and then in a "claim" is stated the claimant's precise demand, much as he would state it in conclusion of a summons. When the time for lodging claims expires the Sheriff appoints the parties to meet him, and allows each to adjust his own claim and to meet the averments of his opponents in so far as necessary. On this being done, the record is closed. (t) Among the parties to it this has the same effect as the closing in an ordinary action, (u) and it is incompetent to amend a claim. (v) After the claims are lodged the Sheriff sometimes appoints a common agent where the interests of a number of claimants are or ought to be the same. This proceeding is provided for by the Act of Sederunt of 1839, but it is not much used now. (x)

When the record of claims has been closed, their discussion and decision proceeds as in an ordinary action; and when a decision is pronounced in favour of any one of the claimants, those to whose interest it is adverse may appeal.

6. Late Appearance of Claimants.-An important feature in multiplepoinding is, that claimants may appear at any stage. Even when they know of the proceedingsindeed, even when they have been called as defenders-the only penalty on not appearing till at a late stage is to exact

(t) 16 and 17 Vict. c. 80, ? 8. (u) Stevenson v. Dumbreck, 18 Feb. 1856, 19 D. 462.

(v) Graham's Trustee v. Graham,

26 May 1868, 6 Macph. 820.

(x) A. S. 10 July 1839, 104.