Scottish Court of Session Decisions

On 14th February 1894 Mrs Mary Henry or Byres executed a trust-disposition whereby she appointed David Logan and others her trustees for certain purposes, and conveyed to them her whole estate, heritable and

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moveable. On this disposition the trustees at once entered upon office, took possession of the trust-estate, and made up titles to the heritable subjects belonging to the truster.

On 26th February 1894 Mrs Catherine Byres or Gemmell, wife of John Dick Gemmell, veterinary surgeon, Stranraer, and daughter of Mrs Byres aforesaid, executed a trust-disposition and settlement whereby she conveyed her whole estate, with full power to take possession, to the trustees named in Mrs Byres' trust-disposition.

On 23rd and 26th April 1894 Mrs Byres and Mrs Gemmell executed a deed of revocation of their respective trust-dispositions.

Mrs Byers died on 27th May 1894 leaving a testamentary writing dated 23rd April 1894 by which she bequeathed her whole estates to her daughter Mrs Gemmell, and appointed her to be her executrix.

On 3rd August 1894 Mrs Byres' trustees raised the present action of multiple-poinding and exoneration against Mrs Gemmell and the other beneficiaries under the trust-disposition in their favour, for the purpose of determining the respective rights of parties to the trust-estate. Mrs Gemmell and her husband lodged defences objecting to the competency of the action on the ground, inter alia, that part of the estate in question was heritable.

On 29th January 1895 the Lord Ordinary ( Kincairney) pronounced an interlocutor repelling the objections to the competency of the action.

Opinion.—… “In the action of multiple-poinding the only parties who have as yet appeared are Mrs Gemmell and her husband. There has been no order for claims, and Mr and Mrs Gemmell have lodged defences challenging the competency of the action.…

The second plea is that the action is incompetent. This was maintained on various grounds. It was maintained that it was not competent to bring into Court heritable property as the fund in medio in a multiplepoinding. The argument was pressed on the assumption that the whole estate was heritable, but, so far as I can see, if it be good at all, it must apply to the heritable portion of a mixed estate as well as to an estate wholly heritable. I am of opinion that the plea is ill-founded. Reference was made to Mackay's Practice, vol. i. p. 113, where it is said that the subject-matter of the fund in medio ‘must be moveable or personal property,’ and that ‘land or other heritable or real property is not a proper subject for a multiple-poinding, and competition with regard to it must be determined in some other action, as declarator or reduction, hut the jus ad rem, as distinguished from the jus in re, the right to demand a conveyance even of heritable property, may be determined in a multiplepoinding.’ The cases quoted in support of this statement do not appear to me to bear it out. It may be that at first the process of multiplepoinding was chiefly used for the determination of competitions for a moveable fund, as the name of the action may perhaps imply. I have not, however, found proof that it was at any time confined to such competitions, and now it is every-day practice to try in a multiplepoinding all questions arising under a trust-deed of a nature fitted to be so tried, without distinguishing whether the trust-estate is heritable or moveable or mixed. The style of a summons of multiplepoinding and exoneration by trustees in the second edition of the Juridical Style Book, vol. iii. 315 (1828), clearly bears to submit to the Court the whole trust-estate, heritable as well as moveable, and that is no doubt good evidence of the practice at that date. Actions of multiplepoinding in which the whole fund in medio is heritage are necessarily few, but in M'Intyre v. Schaw, May 21, 1829, 7 S. 636, a multiplepoinding was expressly decided to be competent in which the whole fund in medio was a share of an heritable bond, and in which the question was whether it ought, on account of certain specialities, to be dealt with as heritable or moveable estate. In this case it certainly does not appear that the estate put into Court is wholly heritable, as probably the greater part of it consists of an heritable bond, which is now in most relations moveable estate. The trust-estate seems therefore to be a mixed estate.”