Scottish Court of Session Decisions

Peter Duffus, crofter, Clashendrum, Kincardineshire, died on 27th June 1886, intestate and without leaving lawful issue.

Mrs Elizabeth Duffus or Jamieson was confirmed executrix-dative, and sold off and realised the whole of the said deceased Peter Duffus estate so far as recoverable.

There remained in the hands of the executrix for distribution among the creditors (after paying the preferable debts) the sum of £94, 7s. 0 1 2d., which, apart from the claim about to be narrated, was sufficient to meet the claims against the estate.

Ann Robertson, a servant of the deceased, had a disputed claim against the estate for £104, 17s., and brought an action for that amount against the executrix upon 15th April 1887, to which answers were duly lodged.

Upon 26th April 1887 James Dallas, one of the creditors on the estate, raised an action of multiplepoinding as real raiser in the name and with the concurrence of the said Elizabeth Duffus or Jamieson, as pursuer and nominal raiser, against the said Ann Robertson and the unpaid creditors on the estate, the above sum of £94, 7s. 0 1 2d. being the fund in medio. To this action Ann Robertson objected, on the ground (1) that the action was incompetent, there being no double distress, and (2) that the action was unnecessary, the prior action of constitution at her instance being still in dependence and being a simpler and less complicated mode of action for dealing with her claim than a multiplepoinding.

The Sheriff-Substitute ( Dove Wilson) repelled the defences and ordered claims. He added this note:—

Note.—It is unfortunate that the rules as to the competency of bringing an action of multiplepoinding are so unsettled and difficult to understand. I deduce from the cases, however, that while the existence of a claim for a disputed debt, said to be due from a trust-fund, will not authorise the action where the trustee is competent and willing to defend an ordinary action for a claim, it will do so where he is unable or unwilling to defend it. Such is the position of the person who is here in the position of trustee. She says that the defender Ann Robertson is making a claim against the estate which she believes to be bad, but which she is unwilling and unable from want of funds to take the responsibility of rebutting. Whatever inconvenience the course of raising a multiplepoinding may occasion, I cannot find authority for saying that it is incompetent. On the contrary, she seems entitled to use this process for obtaining her discharge.

The cases I have found it necessary to consult are:—(1) Crockat v. Panmure, 1853, 15 D. 737; (2) Mitchell v. Strachan, 1869, 8 M. 154; (3) Park v. Watson, 1874, 2 R. 118; (4) Kyd v. Waterston, 1880, 7 R. 884; (5) Robb's Trustees v. Robb, 1880, 7 R. 1049; (6) Pollard v. Galloway, 1881, 9 R. 21; and (7) Dill, Wilson, & Co. v. Ricardo's Trustees, 1885, 12 R. 404.

It is not surprising if I have been able to obtain from these cases only imperfect guidance. They extend over a period of more than thirty years, and they show that during all that time the law has been in a state of doubt and conflict. In the first of them the Lord Ordinary was overruled, and an Inner House Judge dissented. In the second an Inner House Judge doubted and withheld his concurrence. In the third the Court recalled the judgment of two Sheriffs. In the fourth the Lord Ordinary was overruled. In the fifth case the same Lord Ordinary intimated that he followed the preceding decision ‘with the greatest possible regret.’ In the sixth the two Sheriffs concerned differed in opinion, and the case was decided in the Court of Session, by two Judges voting one way and another the opposite way. In the seventh case there was no difference of opinion on the bench, but one of the Judges took the opportunity of saying that he thought a previous case had been wrongly decided. The cases I have quoted were not selected by me for the purpose of showing how much difference of opinion it was possible to put within a small compass. They are the cases which I had looked out as raising the questions most resembling the question here raised.”

Against the interlocutor the defender Ann Robertson appealed to the Sheriff ( Guthrie Smith), who pronounced the following interlocutors:—

“ 28th September 1887.—Having heard parties' procurators on the foregoing appeal, sists the process until the issue of the relative action raised in the name of Ann Robertson.”

3rd March 1888.—Having heard parties' procurators on the pursuer's motion to recal the sist and have the appeal proceeded with, in respect the relative action at the instance of the defender Ann Robertson against the pursuer has now been finally decided, makes avizandum.”

14th March 1888.—The Sheriff recals the sist; recals the interlocutor of 5th August; dismisses the action; finds the real raiser liable in expenses to the defender Ann Robertson; allows an account to be given in, and remits the same for taxation, and decerns.”

The pursuer and the real raiser thereupon appealed to the Court of Session.

Argued for the appellants—The process of multiplepoinding was competent. It was in the circumstances the proper process, being certainly the cheapest and best form of action, and perhaps the only one. It was the proper action for executors to bring who wished exoneration

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when there were conflicting claims against the estate—Bankton, iii. 8, 88; Ersk. Inst. iii. 9, 43. There were competing claims here, and that was sufficient to justify the action; it was not necessary that there should be double distress— M'Dougal's Trustees, July 9, 1830, 8 Sh. 1036. The only case apparently in favour of the view that the process was incompetent was Robb's Trustees v. Robb, July 3, 1880, 7 R. 1049, but there the trustees objected to the action of multiplepoinding being brought; here it had been brought in the name and with the concurrence of the executrix. The claim here made was larger than the whole free residue, and in any case would render the estate insolvent, which was a sufficient reason for bringing a multiplepoinding to settle the claims of all the creditors.

Argued for the respondent—The action of multiplepoinding was incompetent, and in any view it was inexpedient. There were not disputed claims here. The only matter in dispute was the amount of Ann Robertson's claim, which had been properly determined in a separate action of constitution at her instance. The multiplepoinding had been brought not by the executrix, but by one of the creditors as real raiser. A creditor was not entitled to make the whole estate the fund in medio of a multiplepoinding because one claim was larger than the executrix and the creditors were prepared to admit. The case of Robb's Trustees, and especially Lord Gifford's opinion, supported this contention. It was unadvisable that this small estate should be lessened by the expenses of a multiplepoinding.

At advising—