Scottish Court of Session Decisions

This was an action of multiplepoinding and exoneration by William Wood, C.A., factor loco absentis to Andrew Burnet Tait, nominal raiser, against James Meikle, actuary, Edinburgh, real raiser, and David Scott, C.A., trustee on the sequestrated estate of W. Johnstone and Andrew Burnet Hunter.

The action was raised in the following circumstances—Andrew Burnet Tait was born upon 5th October 1838. In 1853 he sailed as an apprentice seaman on a voyage to South America. On 10th December 1853 he was admitted to the hospital at Callao, and on 13th January following he was discharged cured. Nothing had been heard of him since. Between 1846 and 1847 certain successions opened, in which Andrew Burnet Tait and his brother William were jointly interested. The latter obtained payment of his shares, and on his petition the pursuer was appointed factor loco absentis to Andrew Burnet Tait upon 18th March 1862, and had since held the office. William Hunter Tait died on 28th May 1870, and by will conveyed to his wife Mrs Elizabeth Smith Reid or Tait all his means, and appointed her his executrix. Upon 17th October 1870 Mrs Tait was married to William Johnstone, who, the pursuer alleged, had acquired right jure mariti to all the property and effects which belonged to Mrs Tait, including the funds to which she had succeeded or acquired right through the will of William Hunter Tait, her former husband, in her favour. Johnstone was sequestrated upon 4th May 1871, and the defender David Scott, C.A., was appointed trustee on his estates. Upon 30th October 1872 David Scott, as trustee, with the necessary consents, including that of the defender Andrew Burnet Hunter, cousin-german and next-of-kin of Andrew Burnet Tait, offered to public sale under articles of roup dated October 1872 the rights, interests, and claims of right in the estate, funds, property, or effects of Andrew Burnet Tait, or in the funds, property, or effects held by William Wood, C. A., as factor loco absentis. These subjects were purchased by the defender and real raiser Mr Meikle. A disposition and assignation of the subjects was granted in Mr Meikle's favour, and was intimated to the factor loco absentis. In August 1865 the late William Hunter Tait had presented a petition to the Court of Session to have the estate of his brother Andrew Burnet Tait conveyed over to him. The factor lodged answers, and upon 10th February 1866 the petition was refused, on the ground that in the circumstances there was no presumption of the death of Andrew Burnet Tait. The case is reported in 4 Macph. 443, and ante, vol. i, p. 154.

The estate under the control and management of the pursuer, as factor foresaid, being the fund in medio in this action, consisted of Andrew Burnet Tait's share of the above-mentioned successions.

The real raiser now averred—“If Andrew Burnet Tait died unmarried and intestate at any date between 1854 and 1870, his brother the said William Hunter Tait was entitled to succeed to his whole estate, either ab intestato or under the destinations contained in the said trust-dispositions and settlements… . As there can now be no doubt that Andrew Burnet Tait is long since dead, it is desirable that the factory should be brought to an end. These proceedings are necessary that all parties interested may be convened, and that the pursuer may obtain judicial authority to convey the estate to the party or parties having right thereto.”

He pleaded—“(2) In the circumstances disclosed in the condescendence, an action of multiplepoinding is competent, and is the most convenient form of process for determining the rights of parties in the estate.”

The nominal raiser pleaded—“(1) The action is incompetent, or, separatim, unnecessary, in respect—(1st) That the nominal raiser is a judicial factor; and (2d) That there is no double distress. (4) There being no proof or presumption that Andrew Burnet Tait was dead, either at 28th May 1870, or, Pseparatim, that he is now dead, the real raiser has no title or interest to raise the present action.”

The Lord Ordinary pronounced this judgment—“Sustains the second branch of the first plea-in-law and the fourth plea-in-law for the nominal raiser: Dismisses the action, and decerns: Finds the real raiser liable in expenses, &c.

“ Opinion.—I think this action incompetent, in respect there is no double distress. The real raiser does not aver in his condescendence that any claim to the fund in question adverse to that which he himself puts forward has been made or intimated, or even exists. The only persons called as defenders are the real raiser and the persons from whom he derived the title on which his claim is founded. Plainly there can be

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no adverse interest among them, for the real raiser Mr Meikle has been vested in all right to the funds in question which the others had or pretended to have. It was said that the action was competent because while Mr Meikle on the one hand claims the fund, the nominal raiser on the other hand claims to retain it. But that, in my view, is fallacious. The nominal raiser has the fund in his own hands, and he is making no claim with reference to it whatever. It might just as well be said that a debtor claims on a fund in his hands when, in answer to his creditor's demand for payment, he pleads in defence a claim for compensation or a contra account. The reason why the nominal raiser refuses to pay over the fund to the real raiser is because the latter has no right to the fund, not because others are claiming it also.

The action and the real raiser's claim are based upon the hypothesis that Andrew Burnet Tait is dead. The real raiser does not aver that he is dead, but says ‘there can now be no doubt’ that such is the case. I cannot adopt that view. Tait has not been heard of since January 1854, at which time he was little more than fifteen years of age. If alive now he would be rather over fifty-one. I know of no authority for holding at common law that a man is to be presumed dead at such an age even although he has not been heard of for thirty-six years, and has been sought after and advertised for as has been done here. But even if that were held it would not avail the real raiser. He can have no claim to the funds in question unless it be held that Tait died prior to 1870,—that is, at the age of thirty-one, and after he had been unheard of for a period of sixteen or seventeen years. I think I am right in saying that there is no case warranting the presumption of death in such circumstances. I am therefore prepared to sustain the nominal raiser's fourth plea.”

At advising—