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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ferrier (Connell's Trustee) v. Bushnan and Others [1878] ScotLR 15_413 (6 March 1878) URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0413.html Cite as: [1878] SLR 15_413, [1878] ScotLR 15_413 |
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Page: 413↓
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Where there was neither double distress nor the refusal of beneficiaries to concur in granting a discharge— held that a trustee is not entitled to raise a multiplepoinding in order to try the question, whether the only claimant of the fund in dispute has a valid title to grant a discharge.
The pursuer in this action was the surviving trustee under the trust-disposition and settlement of the late Miss Susan Graham Connell, and the subject in dispute was a legacy of £500 which the truster left to her nephew Mr Newton O. R. Bushnan. This legacy was subject to the liferent of the truster's sister Mrs Bushnan, who died in September 1875. Previous to this date, on 30th November 1866, Mr Bushnan executed an indenture of mortgage, in English form, by which he assigned all that he might become entitled to receive under the will of Miss Connell to Mr John Laws Milton, his executors, administrators, and assigns, with power to them to sue in his name. On the 15th October 1868 Mr Bushnan, becoming bankrupt, assigned his estate and effects to Mr Smallpage, one of his creditors in London, as trustee under the Bankruptcy Act 1861. In 1876, on the death of the liferentrix Mrs Bushnan, Mr Smallpage demanded payment of the £500 upon a discharge to be granted by himself alone. The pursuer objected to accept this discharge without satisfactory evidence that the preferable creditor's claim was satisfied. Eventually Mr Smallpage withdrew his claim, and assented to the whole legacy being paid to Mr Chalk, as assignee of the first mortgagee Mr Milton. The mortgage was assigned to Mr Chalk on the 7th September 1876. He offered the pursuer a complete discharge, but the pursuer doubting Chalk's title considered it
Page: 414↓
necessary to raise this action of multiplepoinding, calling as defenders Bushnan, Smallpage, Chalk, and Milton. The defender Chalk pleaded, inter alia—“The action is incompetent, in respect that there is no double distress, and that in any view this is an incompetent process for the purpose of trying the question—Whether the only claimant of the fund in question has a valid title to grant a discharge?”
The Lord Ordinary dismissed the action, finding the pursuer liable in expenses.
The pursuer reclaimed, and argued—If there was no judicial discharge, Smallpage might repeat his claim—indeed, it might be doubted whether he was legally entitled to waive it. There was no actual double distress, but that was not absolutely necessary.
Authorities— Taylor v. Robinson and Others, May 24, 1836, 14 S. 817; Dunbar v. Sinclair, Nov. 14, 1850, 13 D. 54; Mitchell v. Strachan, Nov. 18, 1869, 8 Macph. 155 (Lord Benholme); Park v. Watson, Nov. 21, 1874, 2 R. 118.
Argued for Chalk—The discharge offered was a good and sufficient one; but even were it otherwise, a multiplepoinding was not a proper form of action for trying this question of title, as there was no double distress, and the authorities showed that where there was no double distress those bound to grant a discharge must have refused to do so in order to make a multiplepoinding competent.
Authority— Moncrieff v. Thomson, June 1, 1844, 6 D. 1100.
At advising—
Counsel for Pursuer and Reclaimer— Campbell Smith. Agent— Party.
Counsel for Defender and Objector (Chalk)— Kinnear.— Jameson. Agents— Mylne & Campbell. W.S.
