Scottish Court of Session Decisions

The objector Miller and the respondent Ure, merchants in Glasgow, were engaged, along with certain other parties, in various copartneries, both in this country and in the West Indies, which terminated in 1815. Miller and the other partners, with the exception of Ure, then formed certain new companies, which continued till 1818. These new companies undertook to wind up the affairs of the old copartneries; Miller, the surviving partner resident in this country, intromitting with funds in which Ure, as a partner of the old companies, had an interest. In 1826, with the view of equalizing, up to that date, the sums drawn by them from the old copartneries, Miller and Ure entered into a submission to an accountant, under which there was paid by Miller to Ure the sum of £2546, as what was necessary for equalizing these drafts. A discharge was granted by Ure, “reserving to the parties their equal rights and interests in the funds, property and outstanding debts of any of the said concerns, which may yet be unrecovered; reserving also their mutual claims of relief for an equal share of any debts that may still be due and unpaid by any of the said concerns.” This settlement did not embrace the interests of the other partners of the old companies, with whom Ure had not accounted. Two of these partners, M‘Leod and Downie, died at subsequent periods, one Philips being the only surviving partner, besides Miller and Ure. Philips and the representatives of M‘Leod and Downie were all resident furth of Scotland.

In these circumstances a summons of multiplepoinding was raised, in 1837, in name of Miller (Ure being the real raiser), stating the several copartneries above mentioned, and the settlement between Miller and Ure in 1826, and setting forth that “the pursuer, by himself or his attorneys, or by his partners in the said new copartnery concerns in which he was connected with the said Hugh M‘Leod and Joseph Downie, or by his partners in other subsequent copartnerships in which he was engaged, and who accounted to him for the same, disposed of goods and other property, and recovered and realized various sums belonging and owing to the said former company concerns, in which the said John Ure and the said Hugh M‘Leod, Joseph Downie and Robert Philips respectively were connected with the pursuer as aforesaid, and for the proceeds or amount of which the pursuer, as surviving and solvent partner of the said new concerns, or as an individual, is willing to account; and the pursuer is also possessed of, or indebted in certain sums due to the said Hugh M‘Leod and Joseph Downie, or their representatives, or for which they are entitled to credit, arising out of the said concerns in which they (the said Hugh M‘Leod and Joseph Downie) were connected with the pursuer, after he and they had ceased to be partners of the said John Ure, and for which he, the pursuer, is also willing to account, and to impute the same either towards payment of the sums due by them, the said Hugh M‘Leod and Joseph Downie, or either of them respectively, to the said copartnery concerns in which they were connected with the pursuer and the said John Ure, and to pay to the said John Ure his just share or proportion of the same, or otherwise to pay the amount to the representatives of them, the said Hugh M‘Leod and Joseph Downie respectively, as it may be found he is legally bound to do,” It was then stated that “certain questions had arisen between the pursuer and Ure, and the representatives of M‘Leod and Downie, as to their respective rights to or interest in the said funds in the pursuer's possession, or for which he is accountable, and that the pursuer was ready and willing to account for and pay to those having the best right, the sums of money received by him as aforesaid, as the particulars and amount thereof will be condescended on and ascertained in the course of the process to follow hereon; but he was daily harassed, &c.” The summons, after subsuming against Ure, Philips, and the representatives of M‘Leod and Downie respectively, concluded against these parties, in the usual style, to have it found and declared that the pursuer was liable in once and single payment of the foresaid sums, as the particulars and amount thereof will be condescended on and ascertained, &c.

A copy of the summons was served upon Miller, but the intimation of service did not mention the name of the real raiser; the parties resident abroad were edictally cited, but no steps were taken to found jurisdiction against them by arrestment. Miller thereupon lodged objections as defences, in which he maintained, 1st, That the summons having, in terms of the Act of Sederunt 12th November, 1825, § 58, been “served upon him as a claim, ought to have stated at whose instance the claim was made; 2d, That arrestment jurisdictionis fundandæ causa not having been used, no jurisdiction was constituted against the foreign parties; 3d, That the process was inapplicable to the circumstances of the parties and was funditus incompetent, as, although in the form of a multiplepoinding, it was in reality a process of count and reckoning, in which the question lay not so much between the claimants as between them and the nominal raiser, and he was so far from concurring in the statements which were put into his month in regard to his being possessed of funds, that he now averred the other parties to the action to be largely indebted to him; ¹ and indeed if the competency of this process were sustained, a multiplepoinding might be made the means of introducing into Court almost any process whatever; 4th, That no diligence had been used by competing parties, and there was no proper case of double distress.

It was answered by the real raiser, Ure,—

1st, That Miller was sufficiently certiorated by whom the process was really raised, the intimation having been given in the usual way; 2d, That considering the nature of the process of multiplepoinding, in which the parties were not called on to pay but to compete for a fund, it was unnecessary to use arrestment against foreign defenders to constitute a jurisdiction, which was founded by the fact of a fund in medio being in the hands of the Court; 3d, That this was a fit case for the process of multiplepoinding, as there were here funds in the hands of Miller, the surviving partner in this country of the companies in question, upon which different parties have claims; that it was no proper objection to the competency of the process that the nominal raiser averred he had no funds in his hands, such plea only arising when a condescendence of funds was given in; ² neither was it any objection that the process would involve a count and reckoning, in which the rights and interests of all the parties had yet to be ascertained, the nominal raiser not disclaiming the character of partner ascribed to him, in which character he is sought to be made responsible; and that a common action of count and reckoning by Ure would not have answered the purpose, especially considering that if Ure had used arrestments in the hands of Miller, to found jurisdiction against the foreign parties, it would have been tantamount to admitting that funds were due to them, which he denied, or which at least was not ascertained; 4th, That in order to constitute a valid multiplepoinding, it was not necessary there should be double diligence, but it was sufficient if there were double claims arising against the same fund. ³

The Lord Ordinary pronounced the following interlocutor, with the subjoined note: ^*—“Having considered the objections to the competency

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¹ Stair, IV. 16, 3—Ronaldson v. Johnstone, Dec. 11, 1834 (ante, XIII. 180).

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² Crombie v. Christian's Trustees, May 13, 1830 (ante, VIII. 745.)

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³ Scott v. Drysdale, May 22, 1827 (ante, V. 689) (new ed. 643)—M‘Intyre's Trustees v. Belch, May 21,1829 (ante, VII. 636)—M‘Dougall's Trustees, July 9, 1830 (ante, VIII. 1036); Cumming v. Hay, Feb. 28, 1834 (ante, XII. 508)—Christie v. Allan's Creditors, June 27, 1835 (ante, XIII. 998).

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^* “Though this case was argued before the Lord Ordinary at great length, the points are stated with sufficient distinctness in the objections and answers.

“1.The general objection to the competency of the multiplepoinding, is, that the nominal raiser does not admit that he has any funds in his hands. It is very clear that in the abstract this will not do: it is matter of every day's occurrence, that such processes are raised in the names of persons, who, when they come into Court, say that they have no funds. But this is no objection to the competency of the process. It only raises a question, when it becomes necessary that a condescendence of the fund in medio shall be lodged. This has often been decided, and was so particularly in the case of Crombie v. Christian's Trustees, May 13, 1830. The case of Ronaldson, &c. December 11, 1834, referred to by the objector, is totally different, and has no tendency to prove the point which he must maintain. The attempt there was to change the character and title of possession, by which the funds or estate referred to, had come into the hands of the nominal raisers; and it was on this ground expressly, that Lord Corehouse in his note put the whole judgment.

“The case raised by the present summons is in reality very simple, though the objector perplexes it by his manner of stating the various transactions in which it originates. The substance is merely this: that the real raiser Ure was engaged with the nominal raiser Miller in various copartneries, along with other persons, all of which terminated in 1815; that Miller, along with some of the other partners, then formed new companies, which continued till 1818; that these new companies undertook to wind up the affairs of the old companies; and that Miller, as the surviving partner resident in this country, intromitted with funds in which Ure, as a partner of the old companies, had an interest; that at one time a partial settlement took place between Miller and Ure, so as to equalize the state of their accounts as at that time; but that no final adjustment of the accounts, upon the subsequent intromissions, and the shares of the other partners has ever taken place; and that, as the other partners, or their representatives, must have an interest in any funds which may be held by Miller, so that all these parties must be in the field in any process for adjusting the accounts, the multiplepoinding is the proper form of process for trying all questions among them. What is this but the common case of a dissolved company, where one partner is said to have intromitted with the funds, and a multiplepoinding is brought in order to determine the rights of all the parties? It may turn out that the nominal raiser has not intromitted, or that he has claims which will extinguish his intromissions. But the possibility of this will not render the action incompetent.

“No doubt Ure might have raised a count and reckoning. But then the objector would immediately have stated that all parties interested were not called. He might have raised a multiplepoinding. But, denying that he has funds, and if desirous of avoiding the accounting, he would not have done so; and if Ure had attempted to call the other parties in the count and reckoning, the objector would then, no doubt, have raised his other objection, that those parties are not resident in this country. The Lord Ordinary greatly fears that this is at the bottom of the objections so keenly insisted in to the competency of the multiplepoinding. But if the objector himself, supposing the fact to be that he has funds, could have raised a multiplepoinding effectually, precisely in the same character in which it is here raised, it must be equally competent for Ure to raise it in his name, whether he admits that he has funds or not. In fact, the objector's theory would be a very comfortable one, as it would render it impossible to call him to account in any Court in the world.

“2d, A more particular objection made is, that there is no double distress. The cases referred to in the answers establish, that it is not necessary that there should be double diligence. And here the very statement of the objector is, that there are various other parties, who must have an interest in any funds which may be in his hands, for which Ure requires him to account. It is just the same case with that of a multiplepoinding for distributing trust-funds among creditors and legatees, in reality for distributing partnership funds among the admitted partners.

“3d, It is objected that the other partners, or their representatives, are not effectually called, because all or some of them are not resident in this country, and there are no arrestments jurisdictionis fundandæ causa. But it has been long ago settled, that the process of multiplepoinding supersedes the necessity of an arrestment jurisdictionis fundandæ gratia. Mansfield, Ramsay, & Co. v. Smith, Wright, &c. June 17, 1795, Bell 2, 68.

“4th, The objector insists, that the summons has not been validly brought into Court, because, though he admits that a copy was served upon him, the execution did not mention the name of the real raiser: and, in support of this, he refers to the Act of Sederunt, 12th November, 1825, § 58, which, in appointing the summons in such a case to be served, supposes it to be served as a claim. But there seems to be no foundation for this plea. No Act of Sederunt requires, that the name of the real raiser shall be mentioned; and the objector might as well say that, in the mere service of the summons, the whole nature and amount of the real raiser's claim must be condescended on. In reality, the act 1825, in the appointment of service, does not speak of the summons being served as a claim. It is only when objections are to be produced at the calling, that they are spoken of as objections to the summons as a claim. The summons being served, is held to be as a claim by all or any of the parties called as defenders. This matter is particularly regulated by the latter act of 11th July, 1828, § 23. See Alexander's Abridgment, p. 310, 311, and Burness's Digest of the Judicature Act and this Act of Sederunt, p. 71, 72,—in neither of which is a word to be found, giving the least countenance to this objection—neither is there any practice for it.

“5th, There is an objection of lis alibi pendens, in respect of a process of count and reckoning, at the instance of the representatives of M'Leod, one of the partners, This is just an additional reason for raising the multiplepoinding.

“6th, It is said that the parties called as M'Leod's representatives are not so. This may raise a question in extricating the merits; but it is impossible to assume it in limine. They are the same parties who insist in the count and reckoning.

“The Lord Ordinary sees nothing else requiring notice. Some reference was made in the debate, to certain proceedings in the Court of Common Pleas in England, in a case of Warren, under which some opinions had been taken, as evidence of the law of Scotland, in regard to the process of multiplepoinding. The Lord Ordinary having obtained some explanation of this from the Commissioner who took the depositions, is satisfied that it has no application to the present question. At any rate, this Court must judge on its own views of the law of Scotland.”

and regularity of this process of multiplepoinding, with the answers, and heard parties' procurators thereon, and having made avizandum; and being of opinion that the objections ought to be repelled, and an order made for proceeding in the cause, appoints the cause to be enrolled, in order that an interlocutor may be pronounced repelling the said objections, and that the objector may be called upon to declare whether he acquiesces in that interlocutor or not; and the matter of expenses may be dealt with accordingly.”

Miller reclaimed.