Scottish Court of Session Decisions

John Robb, a builder and contractor at Tynecastle, Dairy, Edinburgh, died on 30th October 1875, leaving a trust-disposition and deed of settlement in favour of James Gowans and others as trustees, by which he conveyed to them his whole estate, giving them full power to carry on his business. The trustees accordingly entered on the management of the estate on his death, and proceeded to realise it though it was heavily burdened with debt. This they did at fair prices with the exception of two tenements of houses situated at Tynecastle, for which they were unable to find a purchaser. As it was evident that the estate would not pay the ordinary creditors in full, and as there was thus a danger that the widow and children might be left wholly unprovided for, they arranged with all the creditors except one that they should receive six and eight-pence per pound in full of their claims. In consequence of further embarrassments, however, it was found impossible at once to raise the money. Towards the end of 1879 they received an offer for the tenements at Tynecastle of £4000, which they accepted, and the result of this improved condition of the trust-funds was that they were enabled to arrange with most of the creditors to accept 10s. per pound as in full of their claims. On this footing most of the claims were discharged, the only creditor whose claim was of considerable amount as yet unpaid being Mr Gowans, whose claim amounted to £1010, 17s. 2d. This claim was made up of six bills granted by the truster amounting to £955, 12s. 9d., and an open account due by him at the date of his death of £55, 4s. 5d. In this claim Mr Gowans had agreed to accept the composition of 10s. per pound.

Mrs Robb, the widow of the truster, in virtue of her interest in the fund in medio under the terms of her husband's trust-deed, and her sons in virtue of their legal rights, disputed the claims of Mr Gowans, and raised an action of multiplepoinding in the name of the trustees as pursuers and nominal raisers against the beneficiary and the trustees, and pleaded—“(3) There being no foundation for the claim of James Gowans, the trustees have no right to retain the funds in their hands to meet the same, or to pay the claims, in the face of the real raisers’ objections to such claims.”

The trustees in their third plea-in-law pleaded that the action was incompetent, in respect—(1) That ex facie of the summons there was no double distress. (2) That the averments in the condescendence contained only the assertion of a claim against the holders of the fund which might have formed the ground of an ordinary petitory action.

The Lord Ordinary ( Craighill), in respect of the decision of the Inner House in the case of Kyd v. Waterson, recently pronounced, found that from the statements on the record there had been no double distress, and therefore dismissed the action. His Lordship appended the following opinion to his interlocutor:—

“ Opinion.—I have listened with great attention to the arguments advanced on both sides, and have been somewhat reluctantly led to the conclusion I have come to. Notwithstanding all that has been so ably presented by Mr Guthrie, I cannot see that there is any distinction between this case and the case of Kyd

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v. Waterson, decided the other day. I think this case is ruled by that decision. There was a controversy there with regard to the rights of parties in trust-funds, and it was sought to bring a multiplepoinding in name of the trustee. No doubt there was not a very clear and satisfactory condescendence of the facts and circumstances out of which those disputes had arisen, or with reference to the right of one of the parties, compared with the right of the others, in those funds. It was plain enough, however, in my opinion, that there were controversies which at one time or another must be decided, and that the sooner the decision was pronounced the better. So I would have held here that a day of reckoning must come, and that the sooner it came the better for the trustees and for the satisfaction of the claims of the beneficiaries. If trustees are to be left to follow their own will, without directions from the Court, they must answer for it that they have not entertained claims which ought to have been rejected. At the same time, the Inner House thinks that trustees are masters of the situation, and are not to be controlled, and my interlocutor must accordingly be somewhat in these terms:—Having heard parties' procurators on the closed record, in respect of the decision of the Inner House in the case of Kyd v. Waterson, recently pronounced, finds that from the statements on the record it does not appear that there is double distress: Therefore dismisses the action, and decerns.

I regret having to follow this course extremely. What has been done in the case of Kyd v. Waterson is inconsistent with all my ideas, and with my reading of all the authorities on the subject. Should the decision referred to become the rule and practice it will materially diminish the utility of actions of this nature. It materially circumscribes the circumstances in which such actions may be made available, and the comprehension as well as the efficacy of a multiplepoinding are therefore most materially diminished. A multiplepoinding, regarded as it must now be regarded, is no longer a congeries of all actions—no longer a solution of troubles while the thing is still open, and when the liabilities of all, so to speak, will be determined before anything past recall has been performed. Notwithstanding that, I must take my instructions from the Inner House, but I repeat that I pronounce this interlocutor with the greatest possible regret. If I could find a distinction which I could regard as in substance a distinction I would avail myself of it, and allow the Second Division another opportunity of saying whether I was right or wrong. But seeing no distinction, I will follow the judgment in Kyd v. Waterson; and I will be happy to find that I have misapprehended their judgment, and that what I ought to have done was, irrespective of that judgment, to find that there was double distress.”

Mrs Robb reclaimed, and argued that the action was competent.

Authorities— Miller v. Ure, June 23, 1838, 16 Sh. 1204; Ker v. Gulland, Jan. 31, 1840, 2 D. 506; Carmichael v. Todd, March 2, 1853, 15 D. 473.

At advising—