Scottish Court of Session Decisions

The Act of Sederunt, 20th March 1907, section 2 ( a), enacts—“Where an action or other proceeding has been commenced in the name of the wrong person as pursuer, or where it has been commenced without a person whose conjunction may be deemed necessary to make a good instance, or where it is doubtful whether it has been commenced in the name of the right person, the Court or Lord Ordinary, if satisfied that it has been so commenced through bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, may allow any other person to be sisted as pursuer in substitution for, or in addition to, the original party, on such terms as to expenses as to the Court or Lord Ordinary shall seem proper.”

On 3rd June 1911 Robert Morrison, leather merchant, Blackness, pursuer, brought an action against Mrs Margaret M'Killop or Morrison, Hampton Villa, Linlithgow, widow and executrix of Alexander Morrison junior, leather merchant, Linlithgow, and others, defenders, in which he sought declarator that his (the pursuer's) brother, the late William Morrison, was at the time of his death a partner of the firm of Alexander Morrison & Sons, leather merchants, Linlithgow, and entitled to an equal one-third share of the capital thereof. Conclusions for accounting and for payment to George Steel Morrison as William's executor followed.

The facts are given in the opinion ( infra) of the Lord Ordinary (Skerrington)—[ vide also the opinion of the Lord President]—who on 24th January 1912 sustained the defenders' plea of no title to sue and dismissed the action.

Opinion.—“The pursuer is a brother and one of the five next-of-kin and heirs in mobilibus of William Morrison, who died on 18th May 1905, unmarried and intestate. The pursuer was resident in Johannesburg at the time of the intestate's death, and two other brothers of the intestate, viz., Alexander Morrison junior, and George Steel Morrison, were appointed executors. The former died in January 1906, and the latter is the sole surviving executor of the intestate. He is cited, but only for any interest he may have as executor or as an individual. His sister Mrs Brockley is also called for her interest. The defenders are (1) the widow and executrix of the said Alexander Morrison junior, and (2) the trustees of the deceased James Morrison, who was also a brother of the intestate, and who died on 26th August 1910. The first conclusion of the action is for declarator

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that the said William Morrison was at the date of his death entitled to an equal one-third of the capital, stock, and goodwill of the firm of Alexander Morrison & Sons, leather merchants and boot and shoe manufacturers, Linlithgow, and also to an equal one-third share of the whole profits made by the said firm from 31st December 1890 to 31st December 1904. In other words, the pursuer wishes to establish a partnership between William and his brothers Alexander and James as at the date of William's death. There are also conclusions for accounting, and for payment to the said George Steel Morrison as William's executor.

“The first plea-in-law for the defenders is to the effect that the pursuer has no title to sue. In the ordinary case the title to prosecute an action like the present one is vested in the executor as the deceased's legal representative and a creditor of the executor, including in this description a beneficiary either under intestacy or under a will, has no title to enforce a contract of copartnery to which he was not a party. For this proposition the defender's counsel cited Rae v. Meek, 15 R. 1033, 25 S.L.R. 737, aff. 16 R. (H.L.) 31, 27 S.L.R. 8; Henderson v. Robb, 16 R. 341, 26 S.L.R. 222; and Gill's Trustees v. Patrick and Others, 16 R. 403, 26 S.L.R. 292. It is certainly logical that no one should be allowed to sue an action unless the contract or property right sought to be enforced has been duly transferred to him and is vested in his person. In general any injustice which this rule of law might operate is obviated by the further rule that the person who has the beneficial interest may compel the person who has the formal title to lend his name as pursuer on receiving security against expenses, or, alternatively, may in certain cases demand an absolute assignation of his own share of the alleged asset. The latter alternative is not always available, and if the former is adopted the pursuer may be unable to find the necessary security. I am of opinion that where justice absolutely requires it the action may, in spite of legal technicalities, be allowed to proceed at the instance of the party who has the beneficial interest. Lord Herschell indicates an opinion to that effect in Rae v. Meek, 16 R. (H.L.), p. 33. A decree in such an action would I think be res judicata, provided always that the whole trustees and beneficiaries had been called as defenders. The case of Watt v. Rogers, 17 R. 1201, 27 S.L.R. 904, was cited by the pursuer's counsel as an example of such an exceptional case, but I rather think that it was a case the facts of which did not bring it within the ambit of the general rule. In that case the real defender was herself one of the trustees, and I think that the pursuer (a beneficiary) had a good title to compel the performance of a duty which was incumbent on the defender both as factor for the trustees and also in respect of her being a trustee. I am aware that Lord Lee and Lord Young, who sustained the pursuer's title to sue, proceeded upon more general grounds. On the other hand Lord Rutherfurd Clark, in the Inner House, and the Lord Ordinary (Lord Trayner) held that the pursuer had no title to sue. The case of Teulon v. Seaton, 12 R. 971, 1179, 22 S.L.R. 786, is another decision where the title of a beneficiary to sue a debtor to the trust was sustained. According to the report, and also according to my recollection as one of the counsel in the case, the pursuer's title to sue was not much discussed or considered in the Inner House, but the judgment as it stands is an authority for the proposition that in exceptional cases a beneficiary may sue a debtor to the trust. I cannot extract from either of these decisions a general rule to the effect that a beneficiary has a title to sue a debtor to the trust in every case where the trustee in whom the formal title is vested has an adverse interest, either fiduciary or personal. In the present case the intestate's executor George Steel Morrison is one of the two testamentary trustees of the deceased James Morrison, and he is also a beneficiary under the latter's will. These interests, fiduciary and personal, might prevent him from forming an impartial judgment as to the' propriety of trying to establish that William was a partner in the firm up to the day of his death. Assuming all this to be the fact, I see no reason why the pursuer should not bring his action in the ordinary way in name of the executor, nor do I see any injustice in requiring from him an indemnity to the executry estate against expenses. I accordingly sustain the defender's first plea, and dismiss the action.”

The pursuer reclaimed, but at the hearing in the Inner House lodged a minute craving leave to amend by sisting the late William Morrison's executor, George Steel Morrison, as pursuer of the action. He further stated that he was prepared to consign in Court the sum of £200 in security of any expenses in which the said G. S. Morrison as executor foresaid might be found liable in the course of the present proceedings, and to pay the expense of the proposed amendment. He cited Harvey v. Farquhar, July 12, 1870, 8 Macph. 971.

Counsel for the executor objected to the amount proposed to be consigned as insufficient, looking to the fact that the estate had been already divided and that he had no funds in hand, and also that the inquiry which the pursuer wanted to raise would extend over a large number of years, and would involve the question whether the said William Morrison was or was not capax at the time he retired from the firm.