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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morison (Gowans' Trustee) v. Gowans [1873] ScotLR 11_27 (1 November 1873)
URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0027.html
Cite as: [1873] SLR 11_27, [1873] ScotLR 11_27

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SCOTTISH_SLR_Court_of_Session

Page: 27↓

Court of Session Inner House First Division.

Saturday, Nov. 1. 1873.

[ Junior Lord Ordinary.

11 SLR 27

Morison (Gowans' Trustee)

v.

Gowans.

Subject_1Trust
Subject_2Action against Co-Trustee
Subject_3Title to Sue
Subject_4Judicial Factor.
Facts:

In a case where one of three trustees brought an action against another of the trustees for recovery of the debt due by him to the trust-estate, to which action the third trustee refused to be a party,— Held that the pursuer had not sufficient title to sue. Held that sisting the judicial factor, who had been appointed by the Court on the motion of the pursuer, gave him a sufficient title.

Headnote:

The trustees on the estate of the deceased Walter Gowans were Mr Alexander Morison, S.S.C.; Mr James Gowans; and his brother, Mr Walter Gowans. Mr Morison raised an action against Mr James Gowans, concluding for payment of certain sums alleged to be due by him to the trust-estate. To this action Mr Walter Gowans refused to be a party, and Mr James Gowans thereupon pleaded, as a preliminary defence, want of sufficient title to sue on the part of Mr Morison. The Lord Ordinary ( Shand) gave effect to this plea, and Mr Morison reclaimed; and at the same time presented a petition to the Lord Ordinary for appointment of a judicial factor. This application his Lordship reported to the First Division, who appointed Mr A. Gillies Smith, C.A., judicial factor on the trust-estate; and Mr Morison then moved the Court to sist Mr Gillies Smith as joint pursuer with himself. The defender opposed this motion.

At advising—

 Judgment:

Lord President—This case is a very peculiar one, and I should be sorry, even for the sake of doing justice in this particular case, to trench upon the general rule, that you cannot sist a new pursuer without the consent of the defender. Now, the action was originally raised by one of three trustees against another as defender, and in this action the third trustee, who is the brother of the defender, declines to concur. The Lord Ordinary found that one trustee had not sufficient title to pursue, and the pursuer accordingly reclaimed. We thought that a judicial factor should be appointed to look after the trust-estate, but his appointment did not extinguish the trust, nor supersede the existing trustees. It was merely intended to meet an emergency, and we accordingly nominated Mr Adam Gillies Smith, C.A. The trust may come into active operation again as soon as the difficulty is at an end, and the trust in fact still exists. Mr Morison is not entitled, after the appointment of the judicial factor, to go on alone, for the judicial factor is now the party entitled to uplift the debts due to the trust-estate and to grant discharges for them; but I don't see why the benefit of the action, so far as it has gone, should be lost, and I think the safest way is, that the judicial factor should be sisted, not, perhaps, as a pursuer, but as concurring with Mr Morison, which will give the latter a perfectly good title; it will give just enough power to Mr Morison, and he will be in a position to grant a valid discharge. It may still be open to the defender to maintain the Lord Ordinary's judgment, and contend that the action is a bad one; but I think all that we can do just now is to sist the judicial factor.

Lord Deas—I am not prepared to sanction any interference with the general rule, that a party ought not to be sisted as a pursuer against the wish of the defender. We ought not to bring into the process a party who has a different interest, and may be entitled to state different pleas. But here the judicial factor who asks to be sisted represents the trust-estate. The trustees have not been removed, nor has the trust-estate been sequestrated. The factor has simply been appointed to meet the present difficulty. Now this is very different from the usual case of sisting a new pursuer. I do not say that the defender may not still maintain that the action was incompetent from the beginning, and cannot be cured by bringing in the judicial factor. Suppose Mr Morison had raised an action against his co-trustee, who is the brother of the defender, or suppose he had been content to ask a decree that the trust-funds should be consigned, or if, with or without the concurrence of the beneficiaries, he had brought an action of removal against his co-trustee, on the ground that he had

Page: 28↓

refused to act, and had succeeded in having him removed, there would have been no incompetency in entertaining an action at his instance. I am quite willing to hear what the parties may have to say.

Lord Ardmillan—The general rule is that we will not sist a new pursuer against the wish of the defender. We have here three trustees—the debtor, the debtor's brother, who declines to be a party to the action, and Mr Morison. The original pursuer was thus only one of three trustees. Under these circumstances a judicial factor has been appointed. Now, I don't think that we could allow the judicial factor to be sisted so as to do away with Mr Morison. But the defender will be entitled to be heard on the question, whether the action has been so badly laid that it cannot be made a competent action by sisting the judicial actor. Mr Morison could grant no proper discharge, but the judicial factor could grant a discharge. I think we should allow the judicial factor to be sisted as a party concurring with the pursuer.

Lord Jerviswoode concurred.

The Court pronounced the following interlocutor:—

“In respect that the judicial factor on the trust-estate of the deceased Walter Gowans has now been sisted as a party concurring with the pursuer, Alexander Morison; recall the interlocutor of the Lord Ordinary reclaimed against, and remit to his Lordship to proceed with the cause, reserving all questions of expenses: With power to the Lord Ordinary to dispose of the expenses in the Inner House with the other expenses in the cause.”

 Counsel:

Counsel for Mr Morison— J. G. Smith. Agent— Alexander Morison, S.S.C.

Counsel for Mr Gowans— Trayner and A. TaylorInnes. Agents— Lindsay, Paterson, & Hall, W.S. B., Clerk.

 1873

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URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0027.html