Scottish Court of Session Decisions

This was an action of multiplepoinding brought in the Sheriff Court at Edinburgh in name of J. M. Glass, solicitor, Edinburgh, as nominal raiser, by John Robertson, grocer and wine merchant, Musselburgh, as real raiser. The defenders called were John Robertson, the real raiser, and W. F. Leslie, insurance agent, Musselburgh, as creditors or pretended creditors of the deceased Karl Kupka, ironmonger, Musselburgh, and also Karl Kupka's widow.

The real raiser averred that in 1897 the affairs of Karl Kupka became embarrassed, that he offered his creditors a composition of five shillings in the pound, which was accepted; that “Kupka on various dates handed to the nominal raiser, Glass, who acted as his agent in the matter, sums amounting to £40, to be held by him for behoof of the said creditors, and to be applied by him in payment to them of the said composition that when the nominal raiser was about to divide this fund among the creditors Karl Kupka died; that the nominal raiser was requested by Kupka's widow to proceed with the division, and that he undertook to do so, but that he had not fulfilled this undertaking, and that he had been repeatedly requested by the real raiser to divide the fund among the creditors.

Defences were lodged for the nominal raiser, in which he averred, inter alia, as follows—“(Ans. 2) Averred that Kupka handed to the nominal raiser sums amounting in all to £30, Is. 10d., with instructions to apply the same primo loco in paying the nominal raiser's account of expenses against Kupka, and secundo loco in paying a composition to Kupka's creditors. (Ans. 3) The nominal raiser is advised that on the death of Kupka his mandate to divide the money among the creditors fell, and that he became a holder thereof under a duty to account to anyone having a title to represent the deceased. In order, however, to save trouble and expense the nominal raiser has been and still is ready and willing, provided he obtains the consent of all parties interested, to divide the balance in his hands, after satisfying his own claims, rateably among Kupka's creditors.”

The real raiser in his condescendence averred a contention on the part of the nominal raiser to the effect that he held the fund for behoof of the creditors other than the defender Leslie, and an opposing contention on the part of Leslie that he was entitled to a share of the fund along with the other creditors, and that in respect of these two contentions there was here double distress. It appeared, however, from correspondence produced that the nominal raiser had intimated his willingness to rank Leslie's claim, provided it was properly vouched, and in view of this it was not ultimately maintained on appeal that there was double distress for the reason stated on record, but it was nevertheless contended that double distress arose here from the fact, disclosed in the averments of the nominal raiser, that he himself was a claimant upon the fund, whereas the real raiser averred that the nominal raiser held it for Kupka's creditors solely.

The real raiser pleaded—“ (3) The defence being untenable, the same should be repelled with expenses.”

The nominal raiser pleaded—“(2) The action is incompetent as laid. (3) No double distress ”

On 9th June 189S the Sheriff-Substitute ( hamilton) issued the following interlocutor:—“Sustains the 2nd and 3rd pleas-in-law for the pursuer and nominal raiser, dismisses the action, and decerns: Finds the real raiser liable in expenses, and remits,” &c.

Page: 291↓

Note.—“ The Sheriff-Substitute is of opinion that there is no warrant for this multiplepoinding, and that Mr Robertson's proper remedy lay in raising an ordinary action against Mr Glass, if that gentleman refused to recognise his claim to a share of the fund in question.”

The real raiser appealed to the Sheriff (Rutherfurd), who on 8th June 1898 issued the following interlocutor:—“ Finds that the action is incompetent in respect of there being no double distress: Therefore adheres to the Sheriff-Substitute's interlocutor of 9th June 1898: Dismisses the appeal: Finds the real raiser liable to the nominal raiser in the expenses of the appeal, and remits the case to the Sheriff-Substitute.”

Note.—… “ It therefore appears that while there is a fund for division in the hands of the nominal raiser, there is no dispute as to the persons entitled to participate, and no proper competition by rival claimants, for it is not alleged that any of Kupka's creditors asks more than a dividend upon his claim. Moreover, the nominal raiser does not ask to be discharged judicially, and the present action has been raised by one who is not the holder of the fund. In such a case, as Lord M'Laren pointed out in the case of Winchester v. Blakey,1890, 7 R. 1050, there must be ‘double distress in the strict and proper sense of the term,’ that is, of course, distress created by competing diligence. The Sheriff is therefore of opinion that the action is incompetent and must be dismissed.”

The real raiser appealed, and argued—There was here double distress. The nominal raiser claimed a preference for his own account. The creditors maintained that the whole fund was payable to them, the nominal raiser having received it in trust for that special purpose. The nominal raiser was both holder of the fund, and also a claimant upon it as an individual. His persona qua holder was quite distinct from his persona qua claimant. There was at least a competition with regard to part of the fund. In such circumstances a multiplepoinding was competent— Commercial Bank of Scotland Limited v. Muir, December 1, 1897, 25 R. 219. There was also here a dispute as to the amount of the fund in medio. Further, there was here a controversy as to a fund upon which various parties had claims, and these claims could be more conveniently considered and decided upon in this form of action than in any other. It was not conclusive against the competency of the action that most of the questions at issue between the parties here could have been settled in an accounting brought by the real raiser against the nominal raiser.

Counsel for the nominal raiser were not called upon.