Trs.,

1911

of the late William Henderson, of Haymount, corn merchant there, brought a petition in the Sheriff Court at Cupar under sec. 10 of the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94) for authority to make up title to certain subjects in Cupar.

By a disposition dated 10th and recorded 15th May 1878, Mrs Landale and spouse had disponed certain heritable subjects in Cupar to the foresaid William Henderson and Mrs Margaret Hill Hume or Henderson, his wife, in conjunct fee and liferent, and to the longest liver of them in fee and their assignees, whom failing to the children of their marriage equally. Mrs Henderson died in February 1886 and William Henderson in September 1907. He was survived by one son, John William Henderson, and three daughters. He left a trust-disposition and settlement dated 10th July 1907, whereby he left his whole estate, heritable and moveable, to trustees for the following purposes, inter alia-"(Thirdly) I wish my family and their aunt, Miss Jemima Thoms Hume, to reside together at Haymount, and I direct my trustees to apply the whole or any part of the revenue of my estate, including profits of business, for the maintenance of my daughters and their said aunt while residing together, including allowance of £20 per annum to said Miss Jemima Thoms Hume so long as she resides with my daughters, and that until my youngest daughter is twenty-one years of age, and as long thereafter as may be considered suitable: (Fourthly) I direct my trustees when they find it convenient after my youngest daughter is twenty-one years of age to realise my estate and divide it, the division to be as follows, viz.£500 sterling to be set aside and invested, and the revenue thereof paid over to the said Miss Jemima Thoms Hume as the same is received during all the years of her life from the date of her ceasing to reside with my daughters, said £500 to be divided equally among my family on the death of the said Miss Jemima Thoms Hume; (2) £1000 sterling to be paid to my said son or his heirs; (3) £1500 to each of my daughters and their respective heirs; and (4) the residue or remainder of my estate, if any, to be divided equally among my daughters or their heirs, declaring that said sum of £1000 sterling shall be paid to my said son only in the event of his having carried on said business for behoof of my family during the whole period of my youngest daughter being under twentyone years of age, and that if my estate shall not be sufficient to provide in full £6000 sterling (including said £500 sterling to be set aside for the said Miss Jemima Thoms Hume), said sum of £1000 sterling for my son, £1500 sterling for each of my daughters, and £500 sterling for behoof of the said Miss Jemima Thoms Hume, shall be proportionately diminished or reduced."

The trustees, in respect of certain debts due to the estate by John William Henderson, obtained decree of adjudication on 2nd June 1910 of the one-fourth pro indiviso share of the subjects contained in the dis

position by Mrs Landale and spouse to which he might establish a right in his person were he served as an heir of provision to his father under the destination therein contained, together with the dwelling-house now known as Haymount, Cupar, built on part of the said land.

Thereafter the trustees brought this petition. They proceeded upon the averment "that John William Henderson was one of the four heirs of provision in special of the William Henderson under the foresaid disposition, and as such in right of onefourth pro indiviso part or share of the lands and others therein described, but had only a personal right thereto," and they founded on the decree of adjudication. They craved the Court to find that they were entitled to procure themselves infeft in the said one-fourth pro indiviso share.

On 5th December 1910 the Sheriff-Substitute (ARMOUR HANNAY) refused the prayer of the petition.

Note. "...William Henderson died in 1897 predeceased by his wife.. He left a trust settlement dated 10th July 1897 under which he disponed his whole estate to trustees with directions to realise it and divide it amongst his children in such a way that his three daughters were to receive the greater part of the estate.

"The question raised by this application is whether the settlement evacuates the destination under which the testator Henderson acquired right to the subjectsif so, this application must be refused. It appears to me that it does. Admittedly it is a question of intention. What did the testator Henderson intend with regard to the distribution of his estate? I think there can be no possible doubt that he wished it divided according to the settlement.

"I have examined the authorities quoted very carefully and have read the settlement more than once, and the only conclusion I can come to is that the latter was intended to revoke, and did in point of fact revoke, and evacuate the destination in the former disposition.

"The following authorities were referred to and have been considered:-Don and Others (Webster's Trustees) v. Webster, 1876, 4 R. 101, 14 S.L.R. 51; Currie v. M'Laren, 1899, 1 F. 684, 36 S.L.R. 494; Campbell v. Campbell's Trustees, 1903, 11 S.L.T. 441; Perrett's Trustees v. Perrett, 1909, 1 S. L.T. 302; Low and Others (Mrs Agnes Garvie or Wilson's Trustees) v. Wilson, decided by the Second Division 6th March 1903, but not reported."

The petitioners appealed to the Court of Session, and argued - Two deeds the special destination and the general disposition-were in existence. They must both be given effect to if possible. Admittedly it was a question of intention. When the testator as here was a party to the special destination, it was practically his disposition quoad the property affected. The rule was that a special destination was not evacuated by a general settlement subsequently executed by the maker of the destination. A deed in which a party con.

curred was his own deed. The case was different where the destination was made by a stranger - Campbell v. Campbell, December 11, 1878, 6 R. 310, 16 S. L. R. 280, and July 8, 1880, 7 R. (H.L.) 100 (Lord Chancellor at 101, and Lord Hatherley at 104), 17 S.L. R. 807. There must be unequivocal indication of intention to revoke the destination-Campbell v. Campbell's Trustees, November 21, 1903, 11 S. L.T. 441 (Lord Kyllachy at 442). Here there was no such indication, but merely a general conveyance of the testator's estate. Also it was important to observe (1) that there was no clause of revocation, and (2) that there was a declaration that the bequests should suffer proportional diminution in event of the estate proving insufficient. The special destination would be held to be evacuated where the purposes of the settlement could not receive effect if it stoodCampbell v. Campbell's Trustees (sup. cit.); Perrett's Trustees v. Perrett, 1909 S.C. 522 (Lord President at 527), 46 S.L.R. 453. Where there was practically nothing left if the destination stood, then it was held to be revoked. But in the present case there would only be a shortage of £127 in carrying out the settlement if Haymount were excluded therefrom.

LORD ARDWALL-I am of opinion that the judgment of the Sheriff-Substitute ought to be affirmed.

I regret for some reasons to come to that conclusion, because there has been considerable expense already caused in pursuance of an opinion to the effect that the special destination here must be given effect to, notwithstanding the general settlement, and that expense will be thrown away should we now hold that the general settlement must rule and have the effect of evacuating the destination in the disposition of this particular property. However, we must decide the case on its legal grounds apart from considerations of mere convenience or expense; and certainly it is matter so far of congratulation that the expense of making up a title should not be very great.

We have had several cases quoted to us, but I do not know that I need go into them in detail. I wish to point out, however, that the Court is not in a very favourable position for giving an exhaustive opinion on all the points which suggest themselves in a case such as the present. For one thing, there is no contradictor here, and the decision we are giving lacks the authority it would have had had there been a contradictor, and had we had the case argued to us on both sides. Not only is there no contradictor to put the various views before us that might have been put by a person holding that character, but we have not a record or special case or state. ment of surrounding facts and circumstances of any kind; though I am ready to accept Mr Christie's assurance that there would be only a shortage of £127 in carrying out the purposes of the disposition were the property of Haymount to be excluded from the operation of the trust.

We are not told anything about the rest of the estate, and we are not told the value of Haymount, and, in short, we have few of the surrounding facts before us which might serve to throw light on the question at issue by showing the circumstances under which the deeds were executed. But apart from that deficit of £127 which would be caused were the special destination to be given effect to, we have what I cannot help viewing as a very important clause in this deed showing that the testator contemplated in his trustdisposition and settlement that Haymount would fall under it, and that he made such provisions therein as necessarily implied a revocation of the special destination contained in the disposition of that property. Where the terms of a destination have been made by a third party it is not in as strong a position as where it has been made by the party himself, but I do not think we need to draw any distinction of that kind here, for I think the third purpose of the trust deed plainly shows that the testator intended that this property of Haymount should be carried by the general dispositive clause of his whole heritable and moveable estate to his trustees, and should be administered by them in terms of the trust purposes. Now that provision is this "I wish my family and their aunt, Miss Jemima Thoms Hume, to reside together at Haymount, and I direct my trustees to apply the whole or any part of the revenue of my estate, including profits of business, for the maintenance of my daughters and their said aunt while residing together;" and then there is a special allowance to Miss Thoms Hume. Now this imports a direction to the trustees to make over the use of Haymount to his family and Miss Hume so long as they should live together after the testator's death, and also to give them an allowance to enable them to live at Haymount, which has been described to us as a large and commodious residence. Now that being expressed, the trustees upon whom it lay to give this use of Haymount to his family and their aunt would not be in a position to do so unless it be held that Haymount was carried by the trust-disposition and settlement, because if it fell under the special destination in the disposition of 1878 it might, for example, have happened as matter of legal right that as soon as Mr Henderson was dead the fiars under that disposition might have sold by consent or under an action of division and sale the property of Haymount, and thus defeated this third pur pose which I have read. Accordingly I think that leads us to this conclusion, that the two deeds cannot stand together, and if that be so, it necessarily follows that the later deed must be held impliedly to revoke the former, and the general disposition must accordingly be held impliedly to revoke the special destination. I think that in the said third purpose we find what Lord Kyllachy in one of the cases quoted to us described as an unequivocal indication of intention to revoke on the part of the testator, and apart from what may be said

about the general provisions in the trust deed which we are not in a favourable position to consider, I think the clause that I have adverted to compels us to hold that the trust-disposition and settlement impliedly revoked the destination in the disposition of 1878.

On these grounds, I am of opinion that the decision of the Sheriff-Substitute should be affirmed.

I

LORD JUSTICE-CLERK-I am of the same opinion. I think the clause to which Lord Ardwall has referred is quite sufficient for the decision of the case. The expression there "I wish" is plainly the expression of a direction which the testator had desired should be put into his disposition and deed of settlement by those who drew it up for him, and it is plainly also an expression which cannot be left out of view in deciding how a title should be made up to the subjects in question. have no doubt that, assuming a case in which there was a clause such as is expressed here--I wish that my daughters shall have the use of Haymount and reside there till the youngest daughter is twentyone, and their aunt to reside with theintrustees, whatever their powers otherwise under the deed might be, would be interfered with by the Court if they did not carry out that wish, but tried to put his estate in such circumstances as the daughters could not live at the place where their father desired them to live. I therefore think that it is very clearly implied that the testator intended that Haymount should be carried by his general disposition of his estate, and that accordingly we should affirm the judgment of the Sheriff-Substitute.

LORD ORMIDALE-I am entirely of the same opinion. I only wish to add that while it is not necessary, in view of the grounds on which your Lordships propose to decide the case, specially to consider the terms of the destination, I am not prepared as at present advised to assent to the view of Mr Christie that the words "and their assignees" make no difference on the construction of the clause.

LORD DUNDAS was absent, and LORD SALVESEN was sitting in the Lands Valuation Appeal Court.

The Court dismissed the appeal.

Counsel for Petitioners-J. A. Christie. Agent-William Black, S.S.C.

A creditor arrested in the hands of an insurance company a sum under a policy which had become payable to his debtor, and for which the debtor had granted a discharge. The insurance company having raised a multiplepoinding, the arrester objected to the competency thereof on the ground that there was no double distress. Held that the multiplepoinding was competent.

On 3rd May 1910 the Colonial Mutual Life Assurance Society, Limited, having their registered office at Melbourne and their head office for the United Kingdom at 33 Poultry, London, pursuers and real raisers, brought an action of multiplepoinding against (1) John Brown, formerly residing in Edinburgh and then residing in Jersey City, near New York, U.S.A., who was described as common debtor, and (2) Poole & Company, accountants, Edinburgh, and Alexander Wilson Poole, accountant there, the sole partner thereof, who were described as "creditors or pretended creditors of the said John Brown," all defenders, to have it found that they were only liable in once and single payment of the principal sum of £105, 10s., including cash profits, due under a policy in name of the common debtor effected with the pursuers. In terms of the policy this sum became payable within one calendar month after proof to the pursuers that John Brown had survived 21st March 1910, the date of the maturity of the policy. On or about 26th March 1910 the defenders Poole & Company used arrestments to the extent of £400 in the hands of the pursuers to found jurisdiction against John Brown and also on the dependence of an action in the Court at Edinburgh against him. In this action Poole & Company obtained decree for £272, 10s. with expenses. Following on this action they raised on 20th April 1910 an action of furthcoming in the Sheriff Court. The pursuers thereupon, on 3rd May 1910, raised the present action of multiplepoinding in which they stated that the sum due under the policy was claimed by John Brown, and that the arrestments used by Poole & Company to found jurisdiction were irregular in form. At the discussion in the Inner House it was stated at the bar that John Brown had sent to the pursuers from the United States a discharge dated 24th March 1910, on receipt of which they were entitled, if not interpelled, to pay the fund. It was also stated that the Sheriff| Substitute had, on 28th June 1910, dismissed

the action of furthcoming on account of an irregularity in the arrestments, and that this interlocutor had been affirmed by the Sheriff on 19th July 1910.

The defenders Poole & Company and A. W. Poole lodged defences, in which they pleaded, inter alia-"(1) There being no double distress, the action is incompetent and should be dismissed, with expenses. (2) In respect that the defenders Poole & Company are alone entitled to the fund in medio, they should in the circumstances condescended on be ranked and preferred thereto with expenses. (3) In respect that the pursuers and real raisers have pled and established that the said arrestments ad fundandam jurisdictionem were invalid, they are barred personali exceptione from raising and insisting in the present action and should be found liable in expenses to the defenders."

On 1st December 1910 the Lord Ordinary (ORMIDALE) repelled the first plea-in-law for the compearing defenders, found the pursuers liable only in once and single payment, and allowed all parties claiming an interest in the fund in medio to lodge their condescendences and claims within fourteen days.

The defenders having obtained leave, reclaimed, and argued―There was here no double distress. The arrestment was bad before this action was raised, and even if it was good one arrestment would not entitle an arrestee to proceed with a multiplepoinding. No doubt double distress did not mean double diligence. It was enough if there were a depositary and two conflicting claimants. But here there was no common debtor and no competition. John Brown, described as such in the summons, was debtor to nobody but Poole & Company, and if he had a claim against the pursuers, these defenders could enforce their claim through him. Actions of multiplepoinding by trustees for exoneration and discharge, or by depositaries, were in a different position and did not require a common debtor M'Dowall & Neilson's Trustee v. Haggart & Company, December 15, 1905, 8 F. 235, 43 S. L. R. 187. An arrestee could not bring a multiple poinding unless there was a conflict among creditors. There was no case where an arrestee following on one arrestment had been held entitled to bring a multiplepoinding. Winchester v. Blakey, June 21, 1890, 17 R. 1046, 27 S. L.R. 811, was a typical illustration of the rule, as there was there a true competition of creditors for the fund in medio; on the other hand, in the case of Clark v. Campbell, December 12, 1873, 1 R. 231, 11 S. L. R. 138, which was analogous to the present case, the action was held incompetent.

Argued for the pursuers-The competency of the multiplepoinding was to be judged of as at the date of the summons, i.e., as at 3rd May 1910. At that date the policy had matured and become payable. Further, it was not decided that the arrestment was bad until long after the summons was raised, the date of the Sheriff-Substi

tute's judgment to this effect being 28th June, and of the Sheriff affirming, 19th July. There was, therefore, sufficient double distress here to justify a multiplepoinding, and it had already been decided in Scott & Others v. Drysdale, May 22, 1827, 5 S. 643 (689), that if there were competing claims one arrestment was sufficient. In the case of Clark v. Campbell, cit. sup., there was only a dispute between a creditor and his debtor, and the action was raised by the latter. The present case was analogous to Royal Bank of Scotland v. Price, January 24, 1893, 20 R. 290, 30 S. L.R. 339, and Fraser's Executrix v. Wallace's Trustees, February 15, 1893, 20 R. 374, 30 S. L.R. 421, and a fortiori of Commercial Bank of Scotland, Limited v. Muir, December 1, 1897, 25 R. 219, 35 S.L.R. 174, in all of which the competency of a multiplepoinding had been sustained.

LORD JUSTICE-CLERK-It has been said in more than one case, and emphatically in a recent case, that all questions relating to the competency of an action of multiplepoinding are questions of practice, and I am unable to see anything in this case to distinguish it from decided cases establishing the practice. There is one case in which I should have had considerable doubt, and in which the Lord President expressed doubt as regards the competency of such an action. I refer to the case of the Com. mercial Bank of Scotland v. Muir (1897, 25 R. 219), in which there was a deposit-receipt in name of two persons jointly. The sum deposited could only have been uplifted on the signature of both those persons, and they might have made their own arrangements for uplifting it. The fact that an action of multiplepoinding was held to be competent in that case shows how far the practice has gone.

In this particular case we have the question whether when one party uses arrest ments and another party indicates an intention to compete with the arrestor, there is sufficient ground for an action of multiplepoinding, There is no doubt it is unnecessary that there should be arrestment by both of the parties who assert a right to the fund in medio. So early as 1827 we have the case of Scott v. Drysdale (5 S. 643), in which the particulars in the rubric are as like the material facts in this case as possible. That case was well considered and the judgment of the Lord Ordinary was reversed.

In this case the record is unfortunate in terminology, but this does not affect the result. I think the case falls within the passage in the opinion of Lord M'Laren in the case of Winchester v. Blakey (1890, 17 R. 1046), in which his Lordship says "The practice of our courts, however, warrants a much greater latitude in the case of the holder of the fund than in the case of the competitors, and for the reason that the holder of the fund can never raise a direct action, and is not bound to remain a deposi tory till the day of his death or till the disputing parties agree to settle their claims. He is entitled to be relieved by

Assur

means of an action of multiplepoinding after a reasonable time, and accordingly it is a sufficient justification of the institution of the action, and is the criterion of its competency, that the claims intimated make it impossible for the depository to pay to one of the parties without running the risk of an action at the instance of the other." That, I think, applies quite clearly to this case. Therefore I have no hesitation in holding that the judgment here ought to be the same as in that case.

In the case of M'Dowall v. Haggart & Co. (1905, 8 F. 235), decided in this Division, I see that I gave the leading opinion. If it was the case that before that decision it had been held that competing claims were sufficient ground for an action of multiplepoinding, then it is abundantly clear that this action is competent. Now it had been so held prior to the decision in M'Dowall's case. It was distinctly so decided by the First Division in the case of the Commercial Bank of Scotland v. Muir that it was so. The position of parties here is, in my opinion, practically the same, and I am therefore of opinion that the interlocutor of the Lord Ordinary should be affirmed.

LORD ARDWALL-I have had a little difficulty in this case, and I was impressed by Mr M'Kechnie's argument on one or two points. He certainly pointed out one blot on the record, in that the summons calls Mr Brown the common debtor, but although that is so, I do not think that a mistake of this sort entitles us to throw out the action. I also see that there are some very unsatisfactory statements made by the pursuers on record, but after all it has been admitted that there is here an arrestment and also a claim on the fund, and I think the existence of these two claims forms a good ground for bringing a multiplepoinding.

The practice has now got very far away from the double distress which was required in the days when this was held to mean legal distress. I think the position is well summed up by Lord Kinloch in the case of Russel v. Johnston, 1859, 21 D. 886, where he says "In the original conception of the process the proper ground of a multiplepoinding was double distress in the strict sense of the term, or, in other words, competition created by rival diligence. But in later times it has not been thought indispensable to have double diligence, but double claims to the same fund have been thought sufficient. It is still, however, necessary to the validity of the action that there should be a true case of double claims to one fund or property on separate and hostile grounds.' I think that this case supplies the requisites above described. We have claims by an arresting creditor and by another person who is truly the proper creditor of the real raisers, because he is the party to whom they are by the terms of their policy obliged to pay the fund in medio if not interpelled. In these circumstances, and considering further that Mr Brown is furth of Scotland, being resident in Jersey City, U.S.A.,

I consider that this is a case in which the raising of an action of multiplepoinding was a proper step for the assurance company to take for their own exoneration, and also for the purpose of seeing that the money due to Mr Brown was not paid away without judicial sanction. Accordingly I am of opinion that the Lord Ordinary's judgment should be adhered to.

LORD MACKENZIE-The principles to be applied in determining whether this multiplepoinding is competent are not really in dispute. It is not necessary that there should be double diligence if there are two competing claims on the fund. In the case where the action is brought by the holder of the fund the Court is always disposed to regard more favourably a multiplepoinding as a suitable process to determine which of two claimants is entitled to the fund. In the present case the pursuers and real raisers, the Colonial Mutual Life Assurance Society, Limited, have no interest in the question other than this, that they are bound to see that the proper party receives payment of the sum due under the policy taken out in their office. This policy was taken out in the name of a certain John Brown, now residing in the United States of America. It matured on 21st March 1910, and amounted to £100 with tontine cash profits of £5, 10s., this amount being payable within one month after proof to the pursuers that John Brown survived the above date.

On the record two salient facts appear. First, it is averred by the pursuers and real raisers that the sum due under the policy is claimed by John Brown. Secondly, there is this fact:-the second plea of the defenders is to the following effect:-" In respect that the defenders Poole & Company are alone entitled to the fund in medio, they should, in the circumstances condescended on, be ranked and preferred thereto with expenses." I think we have here a plain case of adverse claim to the same fund. Of course a mere bald statement that there are certain claims on the fund would not be sufficient, but an explanation is given of the nature of the claim of John Brown. It was stated at the bar that he sent across a discharge dated 24th March 1910, on receipt of which the real raisers (if not interpelled) were entitled to pay the fund. The real raisers also set out that arrestments were used in their hands on 26th March 1910. The present action was brought on 3rd May 1910. It was admitted that it was only on 28th June that the Sheriff-Substitute decided that owing to an irregularity in the arrestments the furthcoming following on them was bad. That judgment was affirmed by the Sheriff on 19th July 1910, so that at the date of the present action there were competing claims on the fund. It is plain the matter will not be allowed to rest here, because Poole & Company having got decree for £272, 10s. against Brown, are creditors of his, and it was stated frankly at the bar that it was their intention to make good their claim against him out of