Scottish Court of Session Decisions

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Cite as: [1835] CA 13_878b

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SCOTTISH_Shaw_Court_of_Session

Page: 878↓

Grant

v.

Thomson No. 270.

Court of Session

1st Division

June 9 1835

Ld. Corehouse.

Dougal Grant, Raiser.— Keay — Moncrieff. David Thomson and Robert Borrowman, Claimants.— M'Neill — Baillie. Sir George Rose and Mandatory Claimants.— D. F. Hope — Speirs.

Subject_Foreign — Judicial Factor — Interest. —

1. The committee of the estate of an English party, against whom a commission of lunacy had issued, is entitled to uplift and discharge a personal bond belonging to the lunatic. 2. The debtor in a bond who was not in mora, but there was delay in tendering him a valid discharge, held not liable for more than bank interest, after he notified to the creditor the consignment of the money.

The late Robert M'Millan, W.S., was debtor in a bond for £600 to Major-General Balfour, from whom Mrs Mary Thomson or Rose purchased it, taking the assignation to herself, “and her assignees whomsoever; whom failing, the said David Thomson, W.S., and Robert Borrowman, clerk to Sir William Forbes and Company, bankers in Edinburgh, or the survivor of them, as her trustees or trustee, for such purposes as she shall direct by any deed or writing executed, or to be executed by her; whom all failing, her heirs and executors whomsoever.”

Mrs Rose resided in England, and a commission of lunacy having been issued against her, Sir George Rose was appointed committee of her estate.

This appointment invested him with “the custody, regulation, occupation, disposition, and receipt, as well of all manors, messages, lands, tenements, houses, farms, revenues,” &c. “and also the custody and government of all the goods and chattels, farms, stock of cattle, wealth, plate, debts, money, jewels, traffic, merchandises, and other commodities and profits whatsoever, to the said Mary Hose belonging, or in any manner appertaining; and also the use and negotiation of the same, to the use and behoof, profits and advantage of the said Mary Rose, and for the maintenance, sustenance, and support of the said Mary Rose,” &c.

Robert M'Millan died, and Dougal Grant, solicitor, intimated to David Thomson, W.S., the agent of Mrs Rose in Scotland, who was custodier of the bond and assignation, that he was ready to pay up the contents of the bond. A question then arose among the parties in regard to the discharge of the bond.

Sir George Rose contended, that, as committee of the estate of Mrs Rose, he was entitled singly to uplift and discharge the sum, seeing that he had the same power in this respect which would have belonged to Mrs Rose, if of sound mind; and his uplifting the money could not alter the destination of it, which, whether Mrs Rose died testate or intestate, could not be changed during her lunacy. He also for some time refused to execute an assignation of the bond in favour of Grant, upon the ground that he would not have been obliged to do so if M'Millan was paying the debt, and Grant was not in any better situation. But Sir George ultimately agreed to execute such assignation.

Messrs Thomson and Borrowman referred to passages in Mrs Rose's correspondence prior to her lunacy, which implied that she had executed a will; and they contended that the money in the bond ought not to be uplifted by Sir George Rose without their concurrence, or except upon the condition of reinvesting it in the same terms, in favour of Mrs Rose and her heirs and assignees, whom failing, Messrs Thomson and Borrowman. They had an eventual interest under the subsisting trust in their favour, which might otherwise be defeated.

Grant insisted that he was entitled to a discharge of the debt, and an assignation of M'Millan's bond, from Sir George Rose, and that Messrs Thomson and Borrowman, for any right or interest they had, should concur in the discharge and assignation. In the mean time, Grant consigned the sum in bank, and notified this.

Thomson and Borrowman raised a multiplepoinding in the name of Grant, in the course of which the above parties appeared, and urged their respective claims. The Lord Ordinary “found the pursuer of the multiplepoinding liable in payment of the principal sum of £600, contained in the bond in question, with interest at the rate of five per cent, from 22d May, 1831, when the last interest was paid, to Martinmas 1831; and in respect of an offer having been made to the known agent of the creditor to pay up the money at that term, found the pursuer liable only in bank interest from Martinmas, 1831, till paid: Ranked and preferred the claimant, Sir George Rose, as committee for Mrs Mary Thomson or Rose, and his mandatory, to the whole principal sum and interest due on the said bond, under deduction of the expenses afterwards found due, reserving action against him at the instance of all parties interested, on account either of the non-application of the fund during Mrs Rose's life, or the misapplication thereof at her death: Found, that the claimant, Sir George Rose, and also the claimants, Messrs David Thomson and Robert Borrowman, for any contingent or eventual interest they may have in the said fund, are bound to deliver up the bond in question, and assignation thereof, and to concur in an assignation of the said debt in favour of the pursuer of the multiplepoinding, upon his making payment thereof, under a reservation of any contingent trust which may be found to exist at Mrs Rose's death, and decerned: Found the claimant, Sir George Rose, and his mandatory, and also the pursuer of the multiplepoinding, entitled to their expenses out of the said fund in medio: And found the claimants, Messrs Thomson and Borrowman, by whom the multiplepoinding was raised, entitled out of the said fund to the expense of raising and bringing the action into Court, but to no other expenses.” ^*

Both Sir George Rose and Thomson and Borrowman reclaimed.

Sir George maintained, that, as he was entitled singly to uplift and discharge the bond, and had been unduly opposed by Thomson and

_________________ Footnote _________________

^* “ Note.—The fund in medio being assigned to Mrs Rose and her assignees whatsoever, by a simple destination, she is fiar of the sum, and the persons substituted as her trustees for certain purposes have only a spes successionis. As Mrs Rose herself, therefore, if of a sound mind, might have uplifted and discharged this sum, it follows that the committee of her person in England may do so likewise, being bound, however, to apply it agreeably to the powers conferred upon him by the Court of Chancery. Thomson and Borrowman, as the substitutes, have neither title nor interest to oppose the claim of the committee. If he do not so apply the money during Mrs Rose's life, or if he misapply, they will have action against him under their right at present contingent, but which will then become vested, and may call him to account, and therefore action has been reserved to them.

“Payment of the bond being offered by Grant the nominal raiser, at Martinmas 1831, to the known agents of Mrs Rose in Scotland, and that offer not being accepted, it is thought interest subsequently cannot be demanded at a rate exceeding bank interest.

“Grant, who pays the bond, is entitled to an assignation from the committee, that he may operate his relief from M'Mlllan's representatives if necessary, and the committee has no interest to refuse. It is also his interest to have an assignation for his security from Thomson and Borrowman, in respect of their contingent right; and it is a mistake to suppose, that the assignation, being a joint one, will import any admission on the part of the committee, that Thomson and Borrowman have any right to prevent him from uplifting the money, or to interfere in the management of it after it is uplifted.”

Borrowman insisting that their concurrence was requisite, he should not be forced to take his expenses out of the fund in medio, which was just laying the expense on Mrs Rose, his constituent, but should be allowed his expenses against Thomson and Borrowman. He also craved his expenses against Grant, and objected to the limitation of the rate of interest.

Thomson and Borrowman contended, that, as the Lord Ordinary found it necessary for them to concur in the assignation under reservation of any contingent trust which might be found to subsist at Mrs Rose's death, this was in itself a justification of their whole claim. They craved to be allowed their expenses against Sir George Rose; and farther, that they should be preferred, as trustees, on the fund to the effect of having their rights preserved till the conditional or eventual trust in their favour was purified by fulfilment or otherwise, or at least to find them not bound to concur in any discharge or assignation of the debt.

Grant contended that bank interest was properly awarded as he was not in mora in making payment, and that Sir George ought not to be allowed expenses against him as he had at first refused to grant an assignation to M'Millan's bond.

Lord Mackenzie.—If the Court were to affirm that part of the Lord Ordinary's interlocutor which ordains Thomson and Borrowman to concur in the assignation of the bond for any contingent or eventual interest they may have, then, I apprehend, wo could not subject them in expenses, as they would in that case appear to have been substantially in the right all along. But if, on the other hand, the Court conceive that they have no interest, and not a shadow of interest in this matter, and that Sir George Rose is singly entitled to uplift and discharge the debt, and assign the bond to Grant, then I think there should have been no multiplepoinding at all, and I should have no difficulty in finding Thomson and Borrowman liable in expenses, and I must own that is what I take to be the true view of the case. I think the Court should not encourage multiplepoindings with a small fund in medio unless there is good ground for raising them.

Lord President—I concur with Lord Mackenzie in thinking that that part of the interlocutor which his Lordship points out should be altered. Sir George Rose, in virtue of his office and appointment, represents Mrs Rose, and if she could have uplifted the debt and discharged it, and given an assignation to Grant without the concurrence of Thomson and Borrowman, Sir George Rose can equally do so. I have no doubt that Mrs Rose could have done so, and therefore the expenses occasioned to Sir George in the question with Thomson and Borrowman should be borne by them, and should not be laid on the fund in medio, which is just burdening Mrs Rose with their payment. As to Grant's expenses I feel more doubt.

Lord Balgray.—Sir George Rose, as committee, was entitled to uplift, and, therefore, to discharge this debt. He was entitled to assign the bond to Grant effectually without any concurrence from Thomson and Borrowman, who have no right or title to object, and there is no ground for the apprehension that his uplifting the fund can affect the succession of his constituent the lunatic. The curator of a lunatic cannot make a new will and settlement for the lunatic—he cannot by any act of his affect the succession of the lunatic in the smallest degree. I think Grant was entitled to insist for an assignation from Sir George, in regard to which I concur with the Lord Ordinary, as well as in regard to the finding as to bank interest. But, as to the pleas maintained by Thomson and Borrowman, I think them decidedly ill-founded, and that the expense occasioned by them should be made to full on these gentlemen.

Lord Gillies concurred.

The Court pronounced this interlocutor:—“Recall the interlocutor reclaimed against, in so far as it finds that the claimants, Messrs David Thomson and Robert Borrowman, are bonnd to concur in an assignation of the debt in uestion in favour of the pursuer of the multiplepoinding, quoad ultra, adhere to the interlocutor reclaimed against, and refuse the desire of the reclaiming note for Messrs Thomson and Borrowman, and decern; and farther, find Messrs Thomson and Borrowman personally liable to Sir George Rose and his mandatary for the expenses incurred by them in this discussion with those parties.”

Solicitors: D. Grant— Thomsons & Elder, W.S.— Mowbray & Howden, W.S.—Agents.

SS 13 SS 878 1835