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No. II.

} Appellants ;

REBECCA LASHLEY and THOMAS LASHLEY,

Esquire, her Husband,
William THWAITES and others, Assignees of

Alexander Hog, a bankrupt, deceased ; and Respondents.
Thomas Hog Esquire,

Notes of the Speech of the Lord Chancellor (Lord Eldon) at

moving the Judgment in this Cause (4th June 1802).*

This cause came before your Lordships by the appeal of Rebecca Lashley and her husband, Thomas Lashley, for his interest, complaining of an interlocutor pronounced by the Court of Session, in an action of multiple poinding, in which her brother, Thomas Hog, was pursuer.

The circumstances of the case are these : Roger Hog, the father of the Appellant and of Thomas Hog, died in March, 1789. Soon after this event, an action was raised by the Appellants against the Respondent Thomas Hog, as heir to his father, as representing him on some one or other of the passive titles known in law, and as universal intromitter with his goods and gear; stating that he was indebted to the pursuer, Rebecca, in the sum of 15,0001., as her share of the goods in communion at her mother's death, as one of the next in kin of her mother (this part of the summons is at present under the consideration of your Lordships in another appeal); it states, also, that he was indebted to her in the further sum of 15,0001., as her share of the means and estate of her father at his death, together with interest on these two sums from the date when they ought to have been paid, till payment.

Thomas Hog's defences were, that the claims were barred by the rational and ample provisions made by the father in favour of the Appellent and his other younger children, which were accepted of by them.

Mrs. Lashley claimed as one of the six children of her mother; but she claimed the whole of the legitim at the death

* From my own notes taken at the time.

66 that

of her father, suggesting, or insisting, that all the other children had discharged their claims. In his defences, Mr. Hog put on record his belief that the other children had renounced, but at the same time insisting that the benefit of such renunciations accrued to him; and he contended that Mrs. Lashley also had renounced her legitim; he insisted on the points also in which Alexander Hog was interested ; viz.,

any claim of legitim was excluded by the trust deed of settlement executed by the father in liege poustie ; that the effects in England were not liable to any claim of legitim ; that, with regard to the effects in Scotland, the renunciations of the children must operate in his (Thomas's) favour; and that the father was domiciled in England at the time of his wife's death.” These, as also the consequence of the father having invested a considerable part of his personal property in the name of his son, are the subject of argument in the other depending clause.

On the 2d of December, 1790, the Court pronounced an interlocutor, finding that Mrs. Lashley's claim of legitim was not barred by any thing done by her, and remitting to the Lord Ordinary to hear the parties upon the effect of the discharges of their legitim by the other children.

It is difficult to conceive, that Alexander and his assignees did not know of this decision.

On the 7th of May, 1792, the judgment, in an appeal by Thomas Hog from the decision of the Court of Session, was pronounced, affirming the interlocutors which settled that the renunciations of the other children operated in favour of the Appellant, Rebecca, but leaving unascertained what was the amount of the personal estate which was the subject of the claim. This involved questions of too great magnitude to receive an early decision; and, indeed, with regard to some of them, I may now observe that they are not very likely yet to be soon decided.

Mr. Hog bonâ fide understood that all the other children had renounced, and also that Mrs. Lashley herself had renounced. In consequence of the affirmance of these interlocutors, many of the questions, which were interesting to the other children, as well as to Mrs. Lashley, came to an end.

The assignees of Alexander now thought proper to make a claim, by saying that he (Alexander) was entitled to legitim as well as Mrs. Lashley, and in consequence they raised the the same kind of action, insisting that he had done no act in the lifetime of his father, nor since his death, which could bar his claim. Thomas Hog instituted, thereupon, an action of multiple poinding, saying that he was ready to pay the whole free personal estate to any person who might be found entitled to it, when its amount should be ascertained, but that he was likely to be harassed by the several parties claiming it; viz., Alexander and his assignees, Mr. Lashley and his wife, and also his creditors, who arrested the funds in Thomas's hands. The Court of Session, on the report of Lord Dreghorn, pronounced an interlocutor, declaring Thomas liable only in once and single payment (the point on which all multiple poindings must rest); finding also that Alexander had not discharged his claim; and, on a reclaiming petition, the Lords adhered. The causes between the parties having been conjoined with the multiple poinding, this appeal is now brought to determine the question of Alexander's right to legitim.

At first, only the assignees of Alexander were called as respondents ; but it occurred to some of your Lordships that it was doubtful whether it would be right to proceed without the presence of Thomas Hog, as a question might arise whether the Court of Session could act in contradiction to the judgment in the former appeal, which adjudged the whole legitim to Mrs. Lashley. This doubt arose in my mind from thinking that a multiple poinding resembled a proceeding by bill of interpleader in this country: as, here, if Rebecca had stated, in a proceeding in the Court of Chancery, that only one of the children had not discharged, and if Thomas had admitted this on the record, and on that admission a decree had been founded, giving the whole subject matter to the plaintiff, it would be found very difficult to overturn such deree. Or put the case thus : if a creditor for 10,000l., due from the estate of a person deceased, stated that he was the only creditor of the deceased, and the executor admitted this averment, and that he had assets wherewith to pay it; if a decree were pronounced in consequence for payment of the debt, whether it were paid or not paid, what would be the result of a claim by another creditor ? If it were paid, no other creditor could call on that creditor for a participation of the sum recovered, but he would have his claim against the executor. If it were not paid, and the executor should pay any part of the money to any other creditor, the first creditor might, nevertheless, still insist for the whole, and no bill of review could be brought ; he should have made the usual enquiry for creditors. I cannot leave this part of the case without noticing that, though some of the judges of the Court of Session expressed their surprise that there could be any doubt of the propriety of the judgment in the case of the multiple poinding, I yet think that very considerable difficulty hangs about it; and I know that a noble and learned Lord now near me (Lord Thurlow) concurs in this opinion.

With regard to the transactions of Alexander with his father during the father's life, and of himself and his assignees since his father's death, in a suit between the brother and sister, I should hold, on the principles of the doctrine of election, that Alexander had renounced. The claim of Alexander for legitim was not made till the cause between Thomas and Rebecca was finished, though he and his assignees knew that they could make such claim. Under these circumstances, what is the effect of the transactions before and after the father's death?

During the lifetime of his father, circumstances occurred which raise a considerable question whether he was not barred during the life of his father: if not, they will be of weight in viewing the later transactions which took place.

It was stated in the Court of Session, that the assignees had acted properly in not saying a word till the cause was over : one judge, indeed, wondered that there was a different opinion in regard to this notion. When I mention the circumstances of the case, you will see that this was not a mere acquiescence, but, in some degree, a case of election. What would have been the consequence had the money been paid out of the hands of the executor? or is it morally fit or proper that one child should benefit at the expense of another, while struggling, perhaps, with poverty ? Would you suffer the assignees, without having provided for the expense, to benefit by the expense of Mrs. Lashley? Will you not rather consider this, in a moral point of view, as evidence of the understanding of parties.

On 29th November, 1768, Roger Hog wrote a letter to Alexander, telling him he intended to pay off his patrimony, without interest ; “ which," he says,

“ is the sum I always allotted to you.” On 31st December, 1768, Alexander executed a discharge of the sums as the portion bestowed on him by his father: he was only a minor at this time. The entries in Roger Hog's books cannot be evidence of any thing; and it is obvious they were no evidence against the daughter Rebecca.

On 1st March, 1779, and 1st September, 1780, Alexander obtained two loans of 2000l. each, making 40001., from his father, for which he granted bonds in the English form. On 30th December, 1783, Roger executed a deed, in which, after reciting these bonds, for love, favour, and affection, and other weighty causes, he resolves, in lieu of provision, to discharge these two bonds ; declaring that this should be in full of all legitim, &c. This discharge he kept in his own hands, and it was found in his repositories at his death. On the question whether Alexander had discharged the legitim in Roger's lifetime, I am of opinion, that the fact of the father's executing this discharge amounts to a demonstration that he could not mean to have contended that the discharge of 1768 amounted to a discharge of the legitim. For these reasons, there is no ground to say, that the legitim was barred in the lifetime of Roger Hog. Indeed, Roger's proving the bonds as debts on Alexander's bankrupt estate in England, is proof of a demand of 20s. in the pound; and, if the bankrupt receives his certificate, the payment of the dividends on his estate is full payment of the debt ; for a man, proving under a statute of bankruptcy, foregoes all other modes of payment than that under the statute, so as to destroy all other remedies for payment.

Having received the first dividend, Roger Hog died. On this event, it is to be supposed that these assignees, as representing the bankrupt, the son of a Scotsman, would have a general knowledge of the rights of the bankrupt, and, among others, of his claim on his father's estate. It was their duty to have examined whether he still retained these rights. But the matter does not rest here. They received, in gremio of the father's discharge of the 40001., information that the child of a Scotsman had a claim, unless he had disposed of it in the lifetime of the father : for, at the father's death, his son Thomas, very properly, and in the due execution of his duty, informed the assignees of the existence of the instrument, and sent it to them. Not only was the attention of the assignees, but also of the bankrupt, drawn to this deed; for, when the discharge was carried to him by Mr. Robertson, the agent of the family, and put into the possession of Thwaites, he gave a receipt for it, which states, that it is subjoined to an “ exact copy” of the discharge. He who stated the copy to be exact could not but know the contents of the deed. Alexander wrote that he approved of this receipt at the bottom of it. They who transmitted this discharge must have considered that Alexander's

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