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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Isabella Geikie or Young and Others v. John Morris and Others [1858] UKHL 1_Paterson_779 (14 June 1858)
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Cite as: [1858] UKHL 1_Paterson_779
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SCOTTISH_HoL
Page: 779↓
(1858) 1 Paterson 779
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 114
v.
Subject_Process — Multiplepoinding — Decree of Preference — Pedigree — Competition — Right to Compear—
After a decree of preference had been pronounced in favour of one of several claimants, in a multiplepoinding involving a question of pedigree, another set of claimants appeared, and insisted on their right to give in a claim.
Held (affirming judgment), That they may be allowed to do so, but under a condition that the compearers should pay one half of the taxed expenses incurred by the party who had been preferred, even though the compearers had not been cited originally, and averred that they had not heard of the litigation till shortly before coming forward. 1
The claimants, Mrs. Geikie or Young and others, appealed against the judgment of the Court of nth March 1856, and pleaded, in their case, that it ought to be reversed, because—“inconsistent (1) with the legal rights of the appellants, as parties who had not been cited in the multiplepoinding; (2) with the equity of the case in its circumstances; and (3) with the practice in processes of multiplepoinding.” Bell's Commentaries, vol. ii. p. 299, § 4.
The respondents supported the judgment in their case on the following ground:— “Because the condition as to prior costs was a fair and proper condition, and one within the competency of the Court to impose, and rightly and properly imposed by them.” Thom, 24th May 1811, F. C.; Mack v. Mack, 9 S. 524.
Mundell and
Hale for the appellants.—There is no ground of law or equity for laying on the appellants the large sum of £1533 as a condition for being allowed to lodge a claim; and to exact it is a denial of justice. The appellants were never cited in the multiplepoinding, and they allege that they had never heard of the litigation till lately, and that they had not been guilty of any negligence since they heard of it. The Court had often stretched its rules of practice to encourage rather than punish poor persons seeking to claim—
Leith v. Leith,
1 S. 468; Shaw's Digest, 1209. The appellants were entitled to appear, so long as the fund was
in medio—2 Bell's Com. 299. It will be found, that in all the cases where the Court has imposed a payment, there
_________________ Footnote _________________
1 See previous reports
28 Sc. Jur. 263, 346.
S. C. 3 Macq. Ap. 347:
30 Sc. Jur. 594.
Page: 780↓
[ Lord Chancellor.—Supposing you are not let in, you can still establish your claim by declarator?]
A declarator would not be the proper course. We would have to reduce the decree. Besides, it leads to circuity of action, which Courts always discountenance.
[ Lord Chancellor.—The first question seems to be, Whether you had an absolute right to come in, i. e. without terms? If you had not, then the Court could impose terms; and the sole question would be, Whether those terms are fair? Is that not peculiarly a question for the Court below?]
Even though we had not an absolute right to come in, the conditions imposed were unfair, and the House will review the discretion of the Court below. We do not object to have expenses given against us ultimately at the end of the suit, but we object to pay them at this stage. We have derived no benefit from the previous litigation, which has proved abortive. It is one thing to pay a large sum down, and another to be liable to pay it. We are willing to accept the latter obligation.
Lord Advocate (Inglis), and Sir R. Bethell Q.C., for the respondents.—After a decree of preference in a multiplepoinding, it is entirely a matter of discretion for the Court to let in a party claimant, and the Court has granted the favour in the present case on just conditions. It would be most unfair to let parties lie by till near the close of an expensive suit, and then come in to share the benefit without having borne the burden. The fight hitherto has been between the next of kin, and the respondents had to bear the expense of driving the Morgans, who were prior claimants, out of the field. The appellants, who profess to be in the same degree of relationship with the respondents, ought to share these expenses. Though they deny having known about the litigation earlier, that allegation should be viewed with suspicion; for the facts of this succession were largely advertised, and were matter of common notoriety all over Scotland. The Court below has exercised a wise discretion in apportioning part of the costs on the appellants, and the House will not lightly interfere with such discretion. What has been done is to put them in the same condition as if they had appeared at the first.
Mundell replied.—The difficulty seems to be to know, what is the meaning of the fund being in medio. We say it is in medio, even after a decree of preference, so long as the fund is not actually paid over to the party preferred; and this seems to be the doctrine of Stair, 4, 16, 3, of Goodsir v. Chalmers, 1 S. 15, and of 2 Bell's Com. 298. We had, therefore, a right to come in without having any terms imposed.
The process of multiplepoinding was raised by Mr. D. Lindsay, the judicial factor on the estates of John Morgan deceased. Upon this proceeding many claimants appeared, claiming the right to the succession, and amongst them two persons named Alexander and James Morgan, and the respondents. Alexander and James Morgan, who are brothers, claimed to be entitled to the whole succession, as the first cousins of the deceased. None of the other claimants alleged that they were in so near a degree of relationship; and, therefore, if Alexander and James Morgan had established their claim, they would have excluded all the rest. Under these circumstances, the Court directed that the case of the Morgans should be first tried upon certain issues, which were framed for the purpose. The Morrises, the respondents, undertook the expense of opposing the claim of the Morgans, and the issues, so far as it is necessary to regard the result as bearing on the present question, were decided in favour of the respondents. On the 20th of February 1856, the Second Division of the Court “Repelled the claims of Alexander and James Morgan, and found them liable in expenses; and on the 27th February 1856, they pronounced an interlocutor in favour of the respondents, sustaining the claims of the claimants, John Morris, William Morris, Mrs. Euphan Wanless or Lyall, Mrs. Ann Wanless or Duncan, and Mrs. Alison Wanless or Ritchie, as next of kin of the late John Morgan, of Coates Crescent, Edinburgh, to the whole of that part of the fund in medio which consists of moveable and personal property, and rank and prefer them accordingly, and decern.”
On the 5th March 1856, the four appellants and George Leckie, appeared, and prayed to be permitted to lodge condescendence and claim. And the Lords of Session “Appointed the parties to give in a minute, stating (among other things) at what time, and from whom, and in what circumstances, the disputed succession and proceedings under the multiplepoinding came to the knowledge of each of the said parties respectively.”
Upon this it appeared, that two of the parties first heard of the disputed succession in July
Page: 781↓
Upon this sum of £1533 not being paid, another interlocutor was pronounced on the 21st May 1856,—“The Lords having considered the note for John Morris and others, No. 1849 of process, in respect of the failure on the part of Mrs. Isabella Geikie or Young, and of other persons for whom the note, No. 1846, was presented, to pay the sum of £1533, mentioned in the interlocutor of 11th March 1846, and to lodge the claim also therein mentioned. Refuse the desire of the said note, No. 1846 of process, and decern.”
Your Lordships will probably find no difficulty in coming to a conclusion, that in the stage of the proceedings in which the appellants first appeared, they had no absolute right to lodge a claim; and if they were asking for an indulgence, the Court would have a discretion to decide upon what terms they should be admitted, subject to correction, if that discretion were unreasonably exercised. In this case, the parties never attempted to intervene until there had been a decree of preference.
The effect of this decree is explained by several text writers, to which I may refer your Lordships, and amongst others, by Lord Stair in his Commentaries (4, 16, 3,) in these terms:— “The other remedy is, when parties are or may be pursued by different pursuers upon distinct rights, in which case they cannot found upon a third party's right; and, therefore, the law allows, that they may cite all parties that do or may pretend right against them, for that which they do acknowledge they may be liable to, either by a personal or real action, to the effect, that they may dispute their rights and preferences, and, that the pursuer in this action may be only liable in once and single payment or performance, and, that he, nor no right of his, may be liable to, double distress, but that he may safely pay or perform to the party that shall be preferred and found to have best right. Whereby a decreet of preference and performance secures the performer for ever; and that albeit the decreet of preference were in absence, or though thereafter it were reduced, whether it had been in absence, or upon compearance, so that the party thereafter preferred will only have access against those who were formerly preferred, for, as payment made bonâ fide secures the payer when no other party is called, so much more are those secured who pay or perform auctore pratore.” And in a passage from Erskine, (4, 3, 23,) the learned author says, “A decree of preference, grounded on this action, secures the pursuer, who makes payment agreeably to the directions of the decree, from the claims of all persons whomsoever. The creditors or claimants who were made parties to the suit have no remedy left them; but as those who were neither called as defenders, nor appeared for their interest, cannot be hurt as to their right of recovering from a third person what he has received in consequence of an erroneous decree to which they were no parties, they are entitled, if they are found to have a right truly better than that of the creditor preferred, to have an action against that creditor for recovery of the sums received by him.”
It seems clear, therefore, that a creditor, that is, a person who has a claim upon the fund, may come in as long as that fund is in medio. And the question is, What is the meaning of the fund being in medio? And whether, when a decree of preference has been pronounced, the fund does not cease to be in medio? Because, as I understand it, the fund is in medio only as long as there are conflicting claims asserted against the fund; and when once a preference is decided in favour of any particular individual, the fund then ceases to be in medio. And that I gather to be the meaning of a passage to which I have already adverted in the course of the argument, and to which I have again to refer your Lordships, in Bell's Commentaries (ii. 299). He says—“The pursuer of the action has little further interest than to see, that such citations have been given as may secure the efficacy of the decree, considered as a discharge to him to abide the orders of the Court respecting the intermediate disposal of the fund, and the ultimate payment of it, and to get the necessary expenses of the common action allowed as a deduction from his debt. By the first interlocutor, in a multiplepoinding, accordingly, the raiser of the action is declared liable only in single payment, and entitled to the expense of raising the action if well founded. The subsequent proceedings concern the amount of the fund and the competition of the creditors, and settlement of their rights; and in settling the amount of the fund the pursuer is entitled to discuss any claim of retention or of compensation which may be competent to him. The whole is closed by a decree settling the order of division, decerning for payment to the claimants, who shall be preferred, and discharging and exonerating the pursuer.”
I think all the authorities that have been cited will satisfy your Lordships, that although, until
Page: 782↓
Therefore, if a party proposes to come in after a decree of preference has been pronounced, and wishes to be allowed to lodge a claim and condescendence, it can only be indulged to him as a matter of favour—he cannot assert it as a matter of right; and the Court may impose upon him such reasonable conditions as they think proper, in order to place him in the favourable position of a certain ranked creditor.
When a decree of preference is pronounced, the fund ceases to be in medio, the conflicting claims have been decided in favour of one of the parties, and the stakeholder is bound to pay it to him. When a decree of preference has been pronounced, any person who thinks he has a preferable claim may challenge the decree, as I have said, by a proceeding for its reduction; or if the money has been paid over, he may proceed to claim repayment of the fund, on the ground of the decree being erroneous. But at that late stage, when a decree has been pronounced, parties can be admitted to that proceeding which resulted in the decree only upon conditions, and cannot insist upon it as a matter of right.
Your Lordships have been pressed with the expressions used by the Judges in the case of the Magistrates of Dundee v. Lindsay, 19 D. 168. The proceedings of the Magistrates of Dundee with respect to this very succession, and the determination of the Court upon them, will throw much light upon the present question. After the proceedings on behalf of the present respondents had resulted in a verdict, but before a decree of preference had been pronounced, the Incorporated Trades and the Magistrates of Dundee presented a petition, praying the Court to allow a condescendence and claim to be received. The Incorporated Trades of Dundee had been called as parties in the process of multiplepoinding, but they did not appear to lodge a claim. And then after the proceedings had gone on upon the footing of an intestacy, they attempted to intervene in the multiplepoinding, claiming under certain deeds, on the ground, that John Morgan did not die intestate, and that the deeds in their favour were valid and effectual. The Court thought, that though they claimed upon this totally different ground, they might originally have lodged a claim without a declarator; but that having had notice from the first, it was incompetent for them to do so at that advanced stage of the proceedings, and they repelled the claim. The Magistrates of Dundee, after the decree of preference in favour of the respondents, raised an action against the judicial factor, and the parties preferred, concluding for declarator, that by certain testamentary writings a valid bequest was made in favour of the pursuers. The defenders lodged, amongst others, two pleas to the effect, “ first, that the action, as libelled, is incompetent, as there are no conclusions for reduction of the decree of preference; and, secondly, the pursuers were in no event entitled to insist in this action, except on the condition of paying to the defenders their expenses in the multiplepoinding.” The Lord Justice Clerk upon the first question—as to the necessity for the reduction of the decree of preference—after expressing his opinion of the position of the parties, says—“In this view it is very plain, that a reduction of the decree of preference cannot be necessary in order to constitute the claim; and, indeed, would be quite inapplicable to the case to be tried, and inconsistent with the only object of calling the defenders. The pursuers state no grounds for reducing that decree, and have no case which would warrant that form of action. The decree sustains the claim of the defenders, as next of kin, and prefers them on that ground. The pursuers have not a word to state against that decree’; they do not seek to establish in themselves the character established by the decree of preference; a reduction would be totally inapplicable to the case. They go against the defenders, because they are in the character of next of kin legally established in them by that very decree of preference. The effect of the action will not then impeach or invalidate that preference as next of kin.” And, then, with regard to the phrase of the Magistrates of Dundee being liable to expenses upon the other plea which I have mentioned to your Lordships, the Lord Justice Clerk says—“Suppose the Trades had appeared in the multiplepoinding, what would have been the course to have taken at the outset? No one was acknowledged to be any relative at all; great doubt existed as to all the parties, even those who have prevailed had to prove a great deal, and they disproved altogether the relationship of those who claimed to be the nearest relations. It might turn out, that none of the parties were relations; and the case of M'Lean shews how claimants in such a case may successively be shewn to be impostors. In that state of things, would the Court have gone on to try the validity of this paper for the hospital of Dundee, as one purpose to be fulfilled by the party entitled to the intestate succession, when it did not appear, that there was any one entitled to the character of next of kin? Or were the present pursuers to be put to the expense and vexation of trying this question with all the parties who had come forward as the next of kin, when it might turn out, that one and all were mere
Page: 783↓
The ground upon which the Court refused to impose costs on the Magistrates of Dundee in that case was, that they were not in the slightest degree interested in the particular proceedings in the process of multiplepoinding which had then taken place. It was a matter of perfect indifference to them who was established to be the next of kin. It was not a proceeding for the protection of the fund in which alone they were interested, because the fund was in Court, and the claimaints were contesting the possession of that fund. And, therefore, the expressions of Lord Cowan, which were urged upon your Lordships at the bar by the counsel for the appellants, must be considered with reference to the subject matter. His Lordship says:— “But then comes the question of payment of the expenses as a condition of the action being proceeded with. A sum said to amount to about £6000, expended by the defenders in establishing their character of next of kin, is asked to be paid down by the pursuers before they are permitted to state the grounds of their claim. In so far as the demand was based on the necessity of a reduction, that has been disposed of. It is alleged, however, that, on grounds of equity, such payment ought to be enforced in limine, and, as I understand the defender's counsel, absolutely, whatever maybe the result of the action. I know of no principle or rule of practice recognized by the decisions of this Court sanctioning the proposition which, in my opinion, might lead to the most inequitable results. Take it, that the pursuers are unsuccessful in asserting their right to this specific bequest, the defenders would not only go out of Court with absolvitor and their full expenses of this process, but be enriched to the extent of the £6000, although it is by the expenditure of that sum that they have fixed their right to the general succession as next of kin. I think, therefore, there would be little equity in that.” Those observations are not to be taken as general observations, applicable to all parties who come in at a late stage of the proceedings of multiplepoinding, but as applicable to the particular circumstances of the case of the Magistrates of Dundee, who, as I have already pointed out to your Lordships, were not interested in the conflicting claims between the different parties claiming to be next of kin, and, as such, entitled to their share of the fund.
I perhaps ought to observe, upon the case of Johnston v. Elder, 10 S. 195. There is a very short report of the case, in which it appears, that the Court would not impose the expenses upon a party who came in after there had been a decree of preference. But that decree of preference was one of a peculiar character, and there probably may be a distinction between such a decree and an absolute decree. That decree of preference was a decree in favour of parties “for ought yet seen.” Now, in the present case, the decree is not of that character,—it is an absolute decree; and I apprehend, that that is the only case which has been cited to shew, that where there has been a decree of preference the party has been admitted to lodge his claim and condescendence, or to assail the decree without having any expenses imposed upon him. That distinction may possibly exist; but, at all events, the note of that case is a very short one, and the circumstances are not at all stated.
Then, my Lords, this being the state of things, the appellants having no absolute right to appear, but being subject to conditions which may be imposed upon them by the Court, the question is, whether there has been, upon this particular occasion, any unreasonable exercise of the judgment of the Court which calls for interference and correction? Your Lordships would be very unwilling in a case of practice, and where it is difficult to refer to any certain standard, to interfere with the discretion of the Court, unless it clearly appeared, that it had exceeded the proper and reasonable bounds. It is difficult, however, to arrive at such a conclusion in the present case. Some of the parties knew of the proceedings more than seven months, others nearly six months, before they intervened. They did not claim to supplant the respondents, but to establish, that they stood in the same degree of relationship with them to the deceased. If they prove their case, they will entitle themselves to more than a moiety of the succession with the respondents. If admitted to the proceedings, they will obtain all the advantage of the past litigation, which has been conducted to a successful conclusion by the respondents at an expense which is enormous. Under these circumstances, there appears to be nothing unjust or unreasonable in requiring them, before they share the benefit, to bear an equal portion of the burden; and, therefore, I think there are no grounds to impeach the discretion of the Court of Session, and I recommend to your Lordships that the interlocutors be affirmed.
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Now that is what has been done here. Those parties do not come in until after the decree has been pronounced. The Court say, “We will give you all the assistance we can, as the fund has not been actually parted with, but it must be upon the reasonable terms of making you pay a proportion of the costs, which you would have been bound to pay, if you had been a party from the beginning.” Whether the proportion of costs has been accurately calculated, is a matter which I think we must leave to the Court below to determine. They took the matter into consideration, and they thought that with reference to the number of persons claiming this new right, as compared with those who had claimed before, these would be fair terms, particularly, I suppose, considering that what was represented as the amount of the costs, really was far short of what the costs actually incurred had been; and, therefore, cutting the knot as well as they could, they said, “You shall pay half the amount of the taxed costs; and upon these terms you may come in.” It appears to me clear, not only that the Court had a discretion in the matter, but that they could not properly have let these parties in, except upon some terms, and these terms appear to me extremely reasonable. I therefore concur with my noble and learned friends, in thinking, that the interlocutor of the Court below ought to be affirmed.
Interlocutors affirmed.
Solicitors: J. B. Douglas, W.S., Appellants' Agent.— Webster and Renny, W.S., and Adam and Kirk, W.S., Respondents' Agents.