Scottish Court of Session Decisions

The Lord President—This is a most singular summons of multiplepoinding, and there are so many apparent grounds of objection that one is almost embarrassed in dealing with them. However, on the very face of the summons there seem to be no grounds whatever for the process. It is raised here with the object of distributing funds in Mr Thomas Ferrier's hands, being the balance due by him to the trust-estate of the late Professor Ferrier of St Andrews, to which trust he acted as agent. In January 1869 Mr Ferrier's agency ceased, and he was then debtor to the trust in the sum of £519 or thereby, which is stated to be the fund in medio in this action. Mr Thomas Ferrier, besides being agent, was himself one of the five trustees of the late Professor Ferrier. Now, he appears on his own shewing to raise this multiplepoinding as trustee? If so, I think it is surely incompetent, because the money is in his hands not as a trustee, but simply as a debtor to the trust-estate. If, on the other hand, he were to acknowledge that the money was in his hands as agent, which is clearly the case, but were to say that it remained undivided, and that there was a competition of claims on the fund; then that would seem to me to be equally untenable in point of fact. The first claim, and an undoubtedly just one against him, is that of the trustees, whose agent, he was. But what is the other? It is the claim of certain supposed heirs of Major Campbell of Glenfeochan, who may have an existence and who may not—we know nothing and he can tell us nothing about them—and what is their claim, supposing it to be made? It is one against Mr Ferrier, upon the ground that he is the business representative of certain legal firms. That may be the case, but it can give the supposed claimant no right against this £519. They may have a very good claim against Mr Ferrier, but they have no right against this fund in competition with the trustees of Professor Ferrier. There are no termini habiles whatsoever for a multiplepoinding, and I am not even satisfied that there are any double claims, for I am not at all clear that there are any such persons as the representatives of Major Campbell of Glenfeochan.

Lord Deas—There is no room for any dubiety as to the way in which Mr Ferrier brings this summons of multiplepoinding. He himself says in the summons that he, the said Thomas Henry Ferrier, as one of the trustees of the late Professor Ferrier, is the real raiser. He raises this process as trustee, though he is only one of five trustees. If he can do so, it seems to follow that the other four could raise a similar process. And a multiplepoinding being already a congeries of actions, we should have a congeries of congeries. But then, although he stated this at the outset, he goes on to make other statements perfectly inconsistent. He goes on to say that the sum in question is the balance in his hands as agent belonging to these trustees, of whom he himself is one. The trustees were therefore, upon the face of the summons, his creditors, and his only creditors. They are entitled and bound to give him a discharge. If this had been an action by the trustees or their quorum, a nice question might have been raised, whether or no there was double distress. It might have been a question whether the possibility of a claim being made by a possibly existing person is enough to raise double disteess. But that is not the action before us. The action is not raised by any person legally entitled to hold the funds. The pursuer's duty was, as soon as required, to pay the funds over to the trustees. I do not see that the mere fact of his being also a trustee makes any difference. He was still acting as the agent of the trust. Nor do I see either danger or hardship that can result to him in being obliged to make such payment to the trustees. Would it make him any more personally liable that, having at one time a fund belonging to the trust estate in his hands as agent for the trust, he paid that sum over into the hands of the trustees on being required to do so. I cannot think so. And, over and above this, I do not see why he should not insist upon paying over the sum to-morrow, and take a discharge from the trustees, and then, if he likes, resign his trusteeship.

Lord Ardmillan concurred.

Lord Kinloch—I am of the same opinion. How does the pursuer justify this action of multiplepoinding? simply by telling us that some people are coming about him and saying that they have possible claims against the trust estate of Professor Ferrier, and asking him to keep this money for their behoof. This can never amount to double distress. I think that the Lord Ordinary was right in dismissing this process as incompetent.