Scottish Court of Session Decisions

The trustees of the late Rev. Joseph M'Intyre, D.D., raised a process of multiplepoinding in April 1831. Part of the fund in medio was claimed by Mrs Margaret Bowie or Collins, wife of James Collins, along with four other parties, as being the next of kin of the deceased Miss Davina Bowie, to whom a portion of the trust-estate stood destined. Mrs Collins and her husband, James Collins, were accordingly cited in the multiplepoinding. Edward Collins, paper maker at Dalmuir, had used arrestments in the hands of the trustees, to attach the interest possessed by James Collins, in right of his wife, in the trust-fund. An execution of personal citation against Edward Collins, which was ex facie regular, was produced in the multiplepoinding; and notice was also given in the Gazette.

After claims had been lodged on the part of seven competitors, the whole parties agreed to have their rights disposed of, under a judicial reference to Mr T. W. Baird, who pronounced an award, ranking and preferring the several claimants in their order on the whole fund in medio. To this award the Lord Ordinary interponed his authority, on 31st May, 1833, by an interlocutor in these terms:—“Having considered the foregoing report by the judicial referee, the Lord Ordinary interpones his authority thereto; and, in terms thereof, finds that the pursuers are entitled to the expenses of the process, and to be satisfied of any other claims that may be competent to them, as the same shall be adjusted in Court; and after these are paid, ranks and prefers the claimants, Mrs Margaret Bowie or Collins, [and four others,] all equally, as nearest in kin to Davina Bowie, by the father's side, upon the free balance of the fund in medio, primo loco, to the extent of five hundred pounds sterling, and interest thereof, &c.: Finds, that whatever balance may remain of the fund in medio, after payment is made of the sums just mentioned, the same, as being a free residue after fulfilling the other purposes of the trust, falls to be equally divided among the testator's children, the issue of such of them as are dead taking the shares respectively intended for their parents by the will of the testator, regard being had to payments already made, so as to equalize the shares drawn by all of them: Repels the claims of the several parties quoad ultra: Finds no expenses due by any of the parties to the others, and decerns: and finds the pursuers entitled to expenses.”

This interlocutor was duly intimated in the minute-book; and an arrangement was then made among the parties for carrying it into effect, A large part of the fund in medio, (to which the five next of kin of Davina Bowie, including Mrs Bowie or Collins, and her husband, were preferred, pari passu,) consisted of £600, with certain interest, being part of a heritable bond by Samuel Shirra, held by the trustees of D. M'Intyre. These five claimants agreed that, in place of uplifting and distributing the £600, a conveyance should be taken of the heritable bond to Messrs Simpson and Hart, writers in Paisley, who were the agents of these five claimants; and that such conveyance should be equivalent to payment of the sum of £600, and the trustees should be, pro tanto, exonered, on granting it. Mr Simpson alone was agent for Mrs Collins and her husband.

After this arrangement was made, and the interlocutor of 31st May became final, the whole preferred parties concurred in moving for decree, on 11th July, 1833, when a concerted interlocutor was pronounced in these terms: “Of consent, approves of the state of the fund in medio produced, and of the scheme of division thereof: Ranks and prefers the claimants, Mrs Margaret Bowie or Collins, [and four others,] as in right of Davina Bowie, primo loco, for £663, 19s. 5d.: Ranks and prefers the same parties (along with two children of the testator) upon the free residue of the fund in medio, £252, 9s. 10d., to the extent of one share each, amounting to £84, 3s. 3d., and decerns: Finds additional expenses due, (to the pursuers' agent,) &c., and allows these decreets of ranking and expenses to be extracted as interim decreets: Finds the pursuers entitled to retain the expense of extracting the decreet of exoneration in their favour, out of the fund in medio, and of consent authorizes the pursuers to assign the heritable bond and infeftment granted by Samuel Shirra, with interest effeiring to that sum, being part of the fund in medio, to A. H. Simpson and John Hart, writers in Paisley, or to any other person to be named by the claimants, preferred primo loco for behoof of the said claimants, and at their expense; as also, to assign the outstanding debts contained in the list in process to such person as may be named by the claimants at their expense; and, on the fund in medio being paid, and the said bond assigned, of consent exoners and discharges the pursuers of the office of trustees and executors of the deceased Dr M'Intyre, in terms of the conclusions of the libel, and decerns.”

In March 1833, Mr Collins, along with his wife, had assigned his whole interest in the trust-funds to Mr Simpson, for the purpose of a rateable distribution among his creditors.

After the interlocutor of 11th July became final, Mr and Mrs Collins, and the other four claimants, addressed a letter to the raisers, requesting them “to assign the heritable bond by Samuel Shirra to you, and which has been produced in the said process of multiplepoinding, to Messrs A. H. Simpson and John Hart, writers in Paisley, our agents, to the extent of £600, with interest effeiring to that sum, it being understood that the said deed shall be executed at our expense, and solely for our behoof.” A disposition and assignation was accordingly executed in favour of Simpson and Hart, who were infeft under it on 4th November following. Their share of the residuary fund being also paid to these claimants, they granted an acknowledgment of full payment, and discharge and exoneration of the trustees.

In September and October, Simpson and Hart came under certain obligations for their respective clients, the amount of which did not appear; but the advances and obligations incurred by Simpson on behalf of Mrs Collins and her husband did not seem to have exceeded £30.

On 16th November, Edward Collins, who had hitherto made no appearance, intimated his intention of lodging a claim in the multiplepoinding, as a rider on the interest of Mrs Collins and her husband, in virtue of his arrestments, which preceded the raising of the multiplepoinding. He alleged that the execution of citation against him was false, and that he had remained all along in ignorance of the process. After some intermediate procedure, he presented a reclaiming note, on 19th December, to be reponed against the interlocutors of 31st May and 11th July, as against decrees in absence. Appearance was made for Mr and Mrs Collins, and for Simpson and Hart, who objected to the competency of reporting, in respect that the decree, though not extracted, had been implemented. The Court “remitted to the Lord Ordinary to hear parties on the competency of this note, with power to repone the petitioner, if his Lordship shall see cause.” The Lord Ordinary, after a debate, ordered minute and answers on the question.

The Objectors pleaded, that, as the whole proceeding had been regular, and a decree had been pronounced, exhausting all the conclusions of the libel, both as to exoneration of the raisers, and ranking and preference of the claimants; and as that decree had become final, and been carried into full effect, by payment being made to the preferred parties, or at least to their agents for their behoof, who had incurred obligations on the faith of the conveyance which was made to them, it was no longer competent to recall the decree by the remedy of a reponing note; and no redress could be asked except by a process of reduction. ¹ This was equally true, whether Edward Collins had been cited or not, but especially so, as there was a regular execution of citation produced.

Edward Collins answered, that he was willing to relieve Simpson and Hart of all obligations and disbursements bona fide incurred by them in reliance on the conveyance in their favour; that, although the decree had become final, it was competent to be reponed against it at any time before extract; ² and that he was not to be cut out of his remedy of reponing, by the acts of the preferred parties, and the trustees, who proceeded irregularly in implementing the decree before extract, and who, in so doing, necessarily took the risk upon themselves of a reponing note being presented by any party having interest. He also alleged, that he was about to raise a reduction of the execution of citation as false.