Scottish Court of Session Decisions

In November 1837, James John Fraser, W.S., raised an action against Captain John Duguid for payment of £1403, 2s. 11d., alleged to be due for cash advanced and business done, conform to account. The defender stated, that in November 1836, an action for £1100, 2s. 3d. had been raised by John Johnstone, printer in Edinburgh, as the assignee of Fraser, which action was eventually abandoned and dismissed; that this sum formed part of the sums now claimed, but Fraser had obtained no retrocession from Johnstone and that as the account libelled on was not produced, the action should be dismissed. On the merits, the defender denied that any debt was due. Fraser then produced a retrocession from Johnstone to him, dated February 9th, 1837, which proceeded on the narrative that the assignation had merely been granted by Fraser to Johnstone, in trust for Fraser's behoof, and that he, Johnstone, had declined to act as trustee, and therefore retrocessed Fraser. The deed also narrated that the action in November 1836, raised in Johnstone's name, was truly raised by Fraser. Fraser also produced an assignation of the above £1102, 2s. 3d. by him in favour of Thomas Collingwood Ker, dated 2d February, 1837, which authorized Ker to pursue for the amount, either in his own name, or in name of his cedent Fraser; and a letter from Ker, dated February 24, 1838, stating that the action was raised by him, Ker, in name of Fraser, and that he was willing to sist himself in the action. Fraser also lodged the account sued for. He then pleaded that the title to pursue was unobjectionable. Part of the account sued for, being the surplus above £1102, had never been out of his own person; and as to the rest, the party who held an assignation to it, Ker was the true pursuer, though using the name of his cedent, as he was entitled to do. And Ker had offered to sist himself, which was not sisting any new pursuer, but the true original pursuer, as to the chief part of the account, and ought therefore to be allowed. The defender objected to Ker being allowed to sist himself, in respect that no new pursuer could be sisted without his consent; and he stated, as his first preliminary defence, that Fraser had not produced any retrocession, or other right or title, vesting in him the claim which had been conveyed to Johnstone.

The Lord Ordinary found “that the pursuer has offered, at the bar, to sist Mr Ker as a party pursuer to the action, but that this does not obviate the first preliminary defence, therefore sustained said defence, dismissed the action, and decerned; and found the pursuer liable in expenses.”

Fraser reclaimed.