Scottish Court of Session Decisions

In 1909 Henry Moncrieff Steele, C.A., judicial factor on the trust estate of the late Andrew Ramsay, raised an action of multiplepoinding with reference to the fee of part of the testator's estate.

A claim to be ranked and preferred to one-half of the fund in medio was lodged by the British Linen Bank, who maintained that in terms of the residuary clause in the trust-disposition and settlement of the deceased Andrew Ramsay one-half of the fund in medio vested in John Crawford Hunter, who died in 1890, and was transferred to the bank by a bond and disposition in security for a cash credit of £17,000 dated 25th December 1878, by which the said John Crawford Hunter conveyed to the bank his whole right and interest in the residue of the deceased Andrew Ramsay's estate, and in which the balance due in 1909 exceeded £9000.

Page: 744↓

On 22nd January 1910 the Lord Ordinary ( Mackenzie) pronounced an interlocutor in which, inter alia, he ranked and preferred the British Linen Bank in terms of their claim. No reclaiming note against this interlocutor was presented.

On 19th March 1910 the judicial factor lodged a claim in which he averred that John Crawford Hunter was indebted to the estate of the deceased Andrew Ramsay to the amount of £4051, 2s. 10d., under two bonds by him in favour of Andrew Ramsay's testamentary trustees granted prior to that in favour of the British Linen Bank, and claimed to be ranked and preferred to the above amount on any sum to which the bank might be found entitled.

An interlocutor allowing this claim to be received was pronounced on 19th March 1910.

On 12th May 1910 the Lord Ordinary pronounced the following interlocutor:— “The Lord Ordinary having heard counsel on the condescendence and claim for the judicial factor on the trust estate of Andrew Ramsay, dismisses the said claim as incompetent, in respect the interlocutor of 22nd January 1910 is a final interlocutor on the merits of the competition, and decerns…

Opinion.—“The position of this case is that, by an interlocutor of the 22nd of January 1910, I, inter alia, ranked and preferred the claimants the British Linen Bank to one-half of the fund in medio in terms of their first alternative claim. That interlocutor proceeded upon the view that John Crawford Hunter, who had the vested right described in my previous opinion, had granted the securities which are set out by the judicial factor in article 8 of the condescendence annexed to the summons ( i.e., the bond and disposition above referred to, and a subsequent disposition to a trustee for behoof of creditors). The claim which I am now asked to consider is a claim put forward by the judicial factor himself, founded on the fact that, prior in date to the securities on which the bank's right is founded, John Crawford Hunter had granted certain securities to the testamentary trustees whom the judicial factor now represents.

Now I am clear upon the authorities which have been cited, more particularly the case of Duncan's Factor v. Duncan, 1 R. at p. 964; the cases of Landale v. Wilson, 2 F. 1047, and Terrell v. Ker, 2 F. 1055, that I am functus as regards the matter of competition. The interlocutor of the 22nd January is a final interlocutor on the merits of the competition.

I refer more particularly to the opinion of the Lord President in the case of Duncan upon that point. I am unable to see that I can possibly at this stage entertain the claim. An argument was submitted to the effect that the interlocutor of 22nd January was not to be considered final because there was no decree for payment. That argument, 1 think, cannot be maintained in view of the opinion of the Lord President in Duncan's case, nor is it consistent with the views expressed by Lord Trayner in the case of Landale. Accordingly, regarding this as an independent claim which might have been stated in the competition, but which was not stated in the competition, I am unable to do anything else than hold that it is incompetent at this stage and to dismiss the claim.

My opinion might have been different had I been able to regard this as a riding claim, but in order that it might be in the position of a riding claim it would have been necessary that the successful claimant should have been not the British Linen Bank but John Crawford Hunter. If John Crawford Hunter had been ranked it might then have been competent for the judicial factor to take advantage of the principles which were recognised in the case of the Scottish Life Assurance Company, 9 S.L.T. 348; the Anglo-Foreign Bank, 16 S.L.R. 731; and also, as I read the case, of what was done in Dymond v. Scott, 5 R. 196. There having been no decree for payment, if the claim by the judicial factor had been of the nature of a proper riding claim it might have been possible to allow him even at this late stage to come into the competition.

That is not the view I take of this claim, and therefore I am unable to see how I can admit the claim to be discussed on its merits in the present proceedings.

It was also maintained that because I had already written upon the interlocutor sheet on the 19th March allowing the claim to be received, therefore the argument for the bank came too late, but in the case of Terrell the Lord Ordinary had pronounced an interlocutor allowing the minute to be received and seen. It was pointed out in the Inner House that the Lord Ordinary should have declined to hear the motion, or at all events refused to write upon it. It may be that that ought, strictly speaking, to have been the course taken in the present case; but however that may be, I think that the only result of the opinion I hold is to dismiss the present claim as incompetent.”

The pursuer and real raiser (the judicial factor) reclaimed, and argued—Even if the interlocutor of the Lord Ordinary were right, the Court could still receive the claim, which was of the nature of an administrative claim — Dymond v. Scott, &c., November 23, 1877, 5 R. 196, 15 S.L.R. 96; Binnie's Trustee v. Henry's Trustees, &c., July 3, 1883, 10 R. 1075, 20 S.L.R. 723; Cowan's Trustees v. Cowan, October 17, 1888, 16 R. 7, 26 S.L.R. 9; Hall's Trustees v. Macdonald, March 8, 1892, 19 R. 567, 29 S.L.R. 465. The cases of Duncan's Factor v. Duncan, June 3, 1874, 1 R. 964 (where the claim had been presented and withdrawn); Landale v. Wilson, June 19, 1900, 2 F. 1047, 37 S.L.R. 791 (where there was a final interlocutor of the Inner House); and Terrell v Ker, June 19, 1900, 2 F. 1055, 37 S.L.R. 807 (when leave was asked to amend a claim which had been ranked) were distinguishable.

Counsel for the claimants and respondents (The British Linen Bank) were not called on.

Page: 745↓