Scottish Court of Session Decisions

By trust-deed dated 20th July 1874 William Wemyes Ker conveyed certain funds to trustees, with directions, inter alia, (I) to pay the income thereof to his wife during her life, (2) after her death to pay the income to himself, and (3) upon the death of the longest liver of himself and his wife to pay the capital to the children of the marriage. After the death of the truster's widow in 1898 certain questions arose with regard to the meaning and effect of this trust-deed, and the trustees raised the present action of multiplepoinding for their determination. On 20th July 1899 the Lord Ordinary ( Kyllachy) pronounced an interlocutor disposing of the whole fund in medio, by which he, inter alia, ranked and preferred one of the claimants, Arthur A'Beckett Terrell, upon the fund “in terms of the second branch of his claim, to the effect of his receiving payment of one-fifth of one-sixth part or share of the trust estate,” and also ranked and preferred him in terms of a riding claim which he made; ranked and preferred the other claimants to certain shares, and quoad ultra repelled the whole claims of parties; found the claimant Terrell liable in expenses to certain of the other claimants, and quoad ultra found no expenses due to or by any of the parties. That interlocutor was not reclaimed against. An interim condescendence of the fund in medio, and a scheme of division in terms of the Lord Ordinary's interlocutor of 20th July 1899, were lodged, and on 8th December 1899 the Lord Ordinary allowed them to be seen and objected to for eight days. Before any further interlocutor had been pronounced in the cause the claimant Terrell on January 16th 1000 lodged a minute, in which he craved

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the Lord Ordinary to open up the record and to allow him to amend his claim. At the date of lodging this minute the fund in medio was still in manibus curiæ. The proposed amendment was to the effect that the truster was, at the date of the execution of the trust-deed of 1874, domiciled in England, and that the deed accordingly fell to be construed according to English law. The effect of such construction, the claimant maintained, would he to give him a larger share of the fund in medio than that to which he had been found entitled.

By interlocutor dated 17th January 1000 the Lord Ordinary allowed the minute to be received and seen for eight days. Certain of the other claimants lodged objections, in which they objected to the proposed amendment being allowed.

On 3rd March 1900 the Lord Ordinary refused the crave of the minute, and found the minuter liable in expenses to the objectors, and by interlocutor dated 10th March he granted leave to reclaim.

Opinion.—“The minuter here, Mr Arthur A'Beckett Terrell, was a claimant in a multiplepoinding at the instance of Ker's trustees, which I disposed of at the end of the Summer Session. He claimed in that process a share of a certain fund, which was a trust fund constituted by a certain trust-deed, and the ground of his claim, as expressed in his plea-in-law, was this—‘On a sound construction of the trust-deed and of the other deeds libelled, the claimant is entitled to be ranked and preferred in terms of his claim.’ That was, as I have said, the ground of his claim. It was a claim rested on what he alleged to be the just construction of the trust deed and certain relative deeds. In July last I repelled Mr Terrell's claim, and sustained certain competing claims, which claims were rested on a different construction of the trust-deed, and although the fund is said to be still in manibus curiæ, there can be no doubt that so far as the Outer House is concerned my judgment is final. It is said that a reclaiming-note is still possible, but that is disputed, and I am not called upon to express any opinion on that question. I have to consider the case as one in which I am, apart from some special ground, functus, having pronounced a final decree of ranking and preference.

What the minuter now desires is to open up the decree of ranking and preference, and he proposes to do so by amending his claim and putting forward what he describes as a new ground of claim—a ground of claim which he says has not hitherto been considered. That new ground of claim is in substance this. He says that he has ascertained that the truster was domiciled in England, and not, as assumed, in Scotland; that the trust-deed falls therefore to be construed according to English law, and that according to English law, or, at all events, to certain canons of construction recognised in the English courts, the judgment which I pronounced in July repelling his claim is not according to the just construction of the trust-deed.

Now, of course, this suggestion is met on the other side by the plea of res judicata, and prima facie that plea seems upon ordinary rules conclusive. But the minuter contends that he is really in the position of the pursuer of an action, and having failed on one medium concludendi, is entitled to bring a new action founded on a different medium. He contends that he is in that position, and not in the position of a defender, who being bound to state all his defences, is open, if he does not do so, to the plea of ‘competent and omitted.’

Now, I do not propose to decide whether, with respect to this kind of question, the position of a claimant in a multiplepoinding is to be assimilated to that of a pursuer or to that of a defender, say in an action of declarator relative to the question which is at issue. I can say that when that question really arises there may be some room for argument, and that it may be necessary to review amongst others the cases of Dymond, 5 R. 196; Elder's Trustees, 22 R. 505; and the Phosphate Sewage Company, 5 R. 1125. But having given every attention to the minuter's argument, I have not been able to see that any such difficult question is here involved.

“It is not in my opinion possible to represent the minuter's new contention as in any proper sense a new ground of claim or of action. It is, I think, no more than a new argument, good or bad, proposed to be used in support of the minuter's original ground of claim—that is to say, his original view of the true construction of the trust-deed. The medium concludendi is and must still be the same, viz., the true construction of the trust-deed and relative writings, and no new light which can now be thrown upon that, the sole and true issue, can, in my opinion, be held to setup a new issue, or to obviate the plea of res judicata founded on the ex hypothesi final decree which I pronounced in July. Therefore I refuse the crave in the minute.”

The minuter reclaimed, and argued—The Lord Ordinary was wrong in refusing to receive the claim. The interlocutor of 20th July 1899 merely ranked and preferred the claimants to the fund in medio “to the effect of their receiving payment or conveyance” of certain shares of the trust-estate. No doubt a scheme of division could be worked out therefrom if the parties agreed, but the interlocutor did not in terms dispose of the whole subject-matter of the cause or competition between the parties within the meaning of section 53 of the Court of Session Act 1868, and was therefore not reclaimable— Kennedy v. Taylor, May 14, 1873, 11 Macph. 603; Governors of Strichen Endowments v. Diverall, Nov. 13, 1891, 19 R. 79. But the present reclaiming-note brought under review all prior interlocutors, and the Court could thus recal the interlocutor of 20th July 1899–1868 Act, section 52. The practice of the Court was to admit a new claim at any time so long as the fund was in manibus curice, which was the case here— Stodart v. Bell, May 23, 1860, 22 D. 1092;

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Elder's Trustees v. Elder, March 16, 1895, 22 R. 505; Dymond v. Scott, Nov. 23, 1877, 5 R. 196, where a claim was received after final judgment in the Inner House. The interlocutor had proceeded upon an error in fact, viz., the assumption that the truster was domiciled in Scotland. It could not therefore be pleaded as res judicata against the reclaimer— Cheape v. Lord Advocate, Jan. 11, 1871, 9 Macph. 377; Creditors of Eyemouth, Elchies' Decisions, ii. sub voce Bankrupt, No. 12; Graham v. Maxwell, May 20, 1814, 2 Dow's App. 314. The reclaimer did not know and had no means of knowing until recently the facts now averred. That distinguished this case from Colquhoun and Duncan, quoted by the objectors. In any view, under section 29 of the 1868 Act the Court was empowered to allow “at any time” all amendments necessary to determine the real question between the parties, and these words were wide enough to cover the claim now tendered.

Argued for the objectors—The interlocutor of 20th July 1899 was a final decree of ranking and preference, and therefore re-claimable without leave. The reclaimer had failed to avail himself of his right and must abide the consequences. It was settled that a decree of ranking and preference was a decree excluding all others who did not reclaim— Haig v. Colquhoun's Creditors, May 26, 1812, F.C.; Duncan's Factor v. Duncan, June 3, 1874, 1 R. 964. The Lord Ordinary was functus as soon as he had pronounced a final interlocutor, and had no power to grant the reclaimer's motion, which was made after the process had ceased to depend before him, and was therefore incompetent. In Dymond the claim admitted was not a new claim affecting the decree of preference which had been pronounced, but a riding claim. The interlocutor of July 20, 1899, was res judicata— Elder's Trustees, supra, a case which was directly in point. The reclaimer's position was that of a defender in an ordinary action, against whom the plea of “competent and omitted” was valid— Phosphate Sewage Company v. Lawson's Trustee, July 20, 1878, 5 R. 1125. The provisions of section 29 of the 1868 Act applied only to a pending action, and the present process was no longer pending. It had been held that an amendment was not competent after judgment had been delivered, although the interlocutor had not been signed— Mackenzie v. Munro, March 17, 1869, 7 Macph. 676.

At advising—