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Cite as: [1834] CA 13_180

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SCOTTISH_Shaw_Court_of_Session

Page: 180↓

Ronaldson

v.

Johnstone No. 60.

Court of Session

1st Division D

Dec. 11 1834

Ld. Corehouse.

Alexander Ronaldson and Francis Nicolson, Nominal Raisers. Thomas Johnstone and Others, Real Raisers.— Sol.-Gen. Skene— Buchanan— Sutherland. Alexander Ronaldson and Francis Nicolson, Objectors,— D. F. Hope— Marshall.

Subject_Process—Multiplepoinding.—

Multiplepoinding dismissed as incompetent, in respect, 1st, That the real raisers had set forth in the summons a statement importing that the nominal raisers had, under a trust-conveyance of the estate of a partnership, wrongful intromission with the estate of individuals, and had committed various illegal acts in the management of the trust; and that the real raisers were creditors of the individuals, and not of the partnership. 2. That there was sot a proper case of double distress. And 3. That the real raisers had not a title to call the holders of the fund to account, even if it consisted of the estate of individuals, and not of a partnership, having done no diligence to attach their estates

William Jardine, grocer in Dumfries, executed a trust-deed in favour of Alexander Ronaldson of Glasgow, narrating that he and his brother Robert had carried on business as copartners—that Robert was dead, and that the copartnery was insolvent; and, therefore, as sole surviving partner, he conveyed “all and sundry the moveable estate and effects of every description belonging to the said Robert Jardine and myself, as partners in the trade or business before mentioned; and in particular, but without hurt or prejudice to the foresaid generality, the whole stock in trade,” &c. “for behoof of all the just and lawful creditors of the said joint trade or copartnery at the date hereof, and that in whatever way their vouchers of debt may be subscribed, whether by myself or by my said brother, providing that they are truly the debts of the said joint trade or company.” Power was given to Ronaldson to assume such co-trustee “as he or the creditors of the said joint trade or company may think fit;” and having called a meeting of the creditors of the copartnery on 24th November, who resolved that Francis Nicolson should be assumed into the trust, Ronaldson executed a deed of assumption accordingly.

Thomas Johnstone and others, alleging themselves to be creditors of William Jardine and of Robert Jardine, as individuals, raised a summons of multiplepoinding in name of Ronaldson and Nicolson, setting forth, that William and Robert Jardine had not been copartners, but separate traders; that Robert died, leaving a daughter, Robina, as his representative; that William's affairs having become embarrassed, he granted the trust-conveyance to Ronaldson, embracing, “not only his whole means and estate, including his shop goods, bock debts, and other effects belonging to himself, but also (but without having acquired any legal title to the property and effects which belonged to the said deceased Robert Jardine, his brother) by the same deed he, the said William Jardine, conveyed to the said Alexander Ronaldson the whole means and estate which had belonged to his said deceased brother, the said Robert Jardine, as at the period of his death, including also his, the said Robert Jardine's shop goods, book debts, and whole effects, and these to be held by the said Alexander Ronaldson, as trustee for behoof of the creditors of each of the said William Jardine and Robert Jardine respectively, and for the purposes, and with the powers therein set forth, as the said trust-disposition herein referred to, to be produced or recovered in the course of the process to follow hereon, will more fully instruct; that by virtue of powers contained in the said trust-disposition, the said Alexander Ronaldson, as trustee foresaid, called a meeting of the creditors of the said William Jardine, and of the creditors of the said Robert Jardine respectively,” &c.; that only a small part of the said creditors attended, and appointed Nicholson to be assumed, and also “without the knowledge of, and not in conjunction with the other and absent creditors of the said William Jardine or Robert Jardine, agreed to hold, and authorized the said trustees to hold the estates, goods, and effects of each of the said William Jardine and Robert Jardine, conveyed to the said Alexander Ronaldson, by the foresaid trust-disposition, as forming one estate, and declared and agreed to hold the said William Jardine and Robert Jardine as having acted in their business and affairs so as to have formed a copartnery, thereby rendering their separate and individual estates one estate and property, and belonging to their joint or several creditors, and that to the great prejudice of absent creditors of the said William Jardine and Robert Jardine as individuals.” They then stated that, “by virtue of the foresaid trust-disposition, and of the minutes of the said meeting of creditors, the said Alexander Ronaldson and Francis Nicolson have assumed to themselves the management of, and have intromitted with, and sold the goods and effects which belonged to the said William Jardine and Robert Jardine respectively;” that they had prepared a scheme of division of the funds thus realized, and had improperly admitted some, and rejected other claimants. The double distress was then set forth to be “that, although the pursuers are only liable in once and single payment of the proceeds of the estates of the said William Jardine and Robert Jardine, with which they have intromitted, and of the additional and remaining part which they are in the course of recovering, and are willing to do justice to the whole of the said creditors, yet the pursuers are daily harassed and threatened at the instance of sundry of the said creditors to be convened in actions touching their conduct and intromissions with the said estate and effects. In particular, several of the said creditors complain, and have threatened the pursuers with actions, on account of the conjunction of the separate estates of the said William Jardine and Robert Jardine into one estate, and the wrongful appropriation of the funds consequent thereon, to their great prejudice, and also on account of certain of the claims of sundry of the said creditors having been erroneously preferred and ranked,” &c. It was then stated, that the pursuers “refuse to rectify said scheme of division, or to convene a general meeting of the whole creditors, for the purpose of receiving their directions on the subject of the management, appropriation, and recovery of the estates, of which they have thus assumed the management;” that they were willing to account for their intromissions; and they were made to conclude, that, after paying the balance in their hands, they should “be discharged and exonered of their whole actings, managements, and intromissions in the execution of the foresaid trust, and the same declared to be extinguished accordingly, but that the pursuers are daily troubled and molested at the instance of the persons after named and designed creditors or pretended creditors of the said William Jardine and Robert Jardine, claiming payment of their debts; and seeing that the pursuers can only be liable in once and single payment and distribution of the funds that shall appear to be due by them on account of their said intromissions, and to account for the proceeds thereof to the party or parties who shall be truly found entitled to the same, creditors of the said William Jardine and Robert Jardine respectively or jointly, as the same shall be ascertained in the course of the process to follow hereon, and that according to their respective rights and preferences over the said funds and effects separately or jointly, as the same shall be determined in this process. Therefore the said William Jardine and Robina Jardine, and also the following persons, creditors, or pretended creditors of the said William Jardine, or the said deceased Robert Jardine, respectively or jointly, videlicet the pursuer, the said Alexander Ronaldson, the pursuer, the said Francis Nicolson, Gillon and Rule,” &c. should be convened, and produce their claims and vouchers, “and compete anent the payment and application of the funds and effects intromitted with by the raisers as aforesaid,” &c.; and that the raisers should be found liable only in once and single payment, and upon paying the funds realized, and conveying to the preferred party “the outstanding funds and effects which belonged to the said William Jardine, or the said deceased Robert Jardine,” the raisers should be exonered of the “whole intromissions had by them by virtue of the foresaid trust-disposition,” &c.

Among the real raisers of this summons, several were parties who had acceded to the trust-disposition.

The nominal raisers, Ronaldson and Nicolson, objected to the competency of the multiplepoinding—

1. Although the summons libelled on the trust-deed, which conveyed only partnership effects to pay partnership debts, yet the narrative and conclusions of the summons applied only to funds belonging to William and to Robert Jardine as individuals, and the real raisers had only an interest in the individual estates, if there were such estates. It would have been incongruous and incompetent for the objectors, as real raisers, to have set forth such a libel, and such conclusions; and it was therefore incompetent for any other party to do this in their name.

2. It was incompetent to put the statement into the mouth of the objectors, that they had intromitted with the funds of both individuals, under a deed granted by one of them, upon a false narrative that they were copartners, and that the funds were partnership estate. ¹

3. Even if the funds had belonged to William and Robert Jardine as individuals, yet the real raisers had done no diligence to attach such part as belonged to William, and had used no confirmation to take up what belonged to Robert. They had thus no title to pursue; and,

4. On the same supposition, there would be distinct estates of Robert and William belonging to the separate creditors of each; but, without these two sets competing upon the same estates, there would thus be no termini habiles for a multiplepoiading.

_________________ Footnote _________________

¹ 4 Stair, 16, 3; 2 Bell, 337; 4 Ersk. 2, 29,

The real raisers answered—

1. It was necessary to refer, narrativé, to the trust-deed, as explaining how the funds came into the hands of the objectors; but although the existence of that deed might be founded on by some of the competing claimants, the real raisers were not barred from showing that these funds belonged to the Jardines as individuals, and should now be paid over to their respective creditors.

2. The statements in the libel which, the objectors refused to adopt, might be withdrawn and specified in a minute, as the averment of the real raisers, and not the admission of the objectors.

3. The averments of the real raisers must be assumed in hoc statu to be well founded, and they had therefore a title to insist for a judicial distribution of the funds in the hands of the objectors. They could have raised an action of count and reckoning against the objectors, and they could equally bring a multiplepoinding in their name; and,

4. There was a competition upon the mass of the funds in the hands of the objectors, so long as any claim was made on them by creditors of an alleged partnership, maintaining they were partnership effects.

The Lord Ordinary “dismissed the action as incompetent, and decerned, and found the raisers liable in expenses.” ^*

_________________ Footnote _________________

* “ Note.—William Jardine, in the character of surviving partner of the company of Robert and William Jardine, executed a trust-deed in favour of the objectors, conveying to them certain funds, said to have been the property of the late company, for distribution among the company creditors. The real raisers, some of whom appear at one time to have acceded to the trust, now allege that there never was a partnership between William and Robert Jardine, and they have brought this multiplepoinding in the name of the trustees, and claim in it as the creditors, not of the company, but of Robert and William Jardine as individuals.

“There are various objections to the competency of this proceeding. The objectors, in whose name it is raised, are made to disclaim their own title of possession, and to acknowledge a liability which they deny. The summons sets forth, that there never was a company—that the pursuers have wrongfully intromitted with the effects of Robert and William Jardine, as individuals—and have committed various irregular and illegal acts in the management of the trust—statements which cannot be put into the mouth of the pursuers by those who, without their consent, raise an action in their name. It is true the raisers, at the debate, offered to expunge some of these statements, but that is immaterial, for, though not expressed, the same thing is necessarily implied in the grounds of the action.

“2. There is no double distress. The prejudicial question to any distribution is, whether there was a partnership to which the funds intromitted with by the trustees belonged, or whether those funds belonged to the individuals, Robert and William Jardine. There are only two parties in this question, the acceding creditors, appearing by their trustees, on the one hand, and the non-acceding creditors disputing the existence of the trust on the other, which raises no competition in the legal sense of the term. If it were otherwise, any claim which one individual has against another might be tried in the shape of a multiplepoinding, which would be an obvious abuse of a form of procedure so expedient in cases to which it properly appiles. The raisers say, that the objectors, as trustees, are bound to account either to the creditors of the company, or to the individuals, as the one or the other shall be preferred. But their title of possession flows from the alleged company alone, and, until it is set aside, they are not at liberty to account to any but the company or its creditors. The authority of Lord Stair upon this point, quoted in the minute for the objectors, is decisive. It is not in a multiplepoinding, therefore, raised in their names, and without their consent, that their title can be impeached, but only in an ordinary action of reduction brought against them for that purpose.

“3. The incompetency of the proceeding is well illustrated by the circumstance, that the raisers are attempting to establish their claim to the funds as the property of William or of Robert Jardine, while as yet they have no title to insist, for they have neither attached the right of William, the surviving brother, by diligence, nor that of Robert, who is dead, by confirmation or otherwise.”

The real raisers reclaimed.

The Court adhered.

Solicitors: A. C. Howden, W.S.—A. and J. Paterson, W.S.—Agents.

SS 13 SS 180 1834