Scottish Court of Session Decisions

An action of count and reckoning was brought by Elizabeth Reid and others, her sisters, against the trustees of the deceased James Reid, their father, and the object of the action was (1) to ascertain the amount of the trust-estate, and (2) to ascertain the portion of that estate due to the pursuers.

This action was a Second Division case.

Ten years after, an action of count, reckoning and payment was raised by Walter Reid, the brother of the pursuers in the first action, against the same defenders, viz. the trustees of James Reid, and the object of this action was to fix the amount of the trust-estate due to the pursuer Walter Reid.

About the same date as the second action, a third action was raised by the said trustees against the pursuers in both the other cases, viz. Walter Reid and his sisters. The object of this third action was to recover certain sums said to be due by Walter Reid to the trust-estate, but with the alternative that he should relieve the pursuers of the first action—that is the action of count and reckoning brought by the other defenders Elizabeth Reid and others, against the pursuers Reid's trustees.

The second and third actions were brought to the First Division of the Court.

The Lord Ordinary pronounced an interlocutor conjoining the actions, and Walter Reid and his sisters reclaimed. When the reclaiming notes were in the Single Bills the counsel for the trustees moved that the actions be remitted to the Second Division. This motion was opposed by the reclaimers.

It was argued for them that (1) There was no such identity in the subject matter of the actions, or contingency between the actions, that they must be conjoined under the Act of 1868; (2) That there being thus no necessity to do so, it was not in the circumstances expedient, for the later actions had not been raised until many years after the first action, and although the trust-estate which formed an element in each action was the same, yet the real subject matter in each action was different, viz. the amount due to the respective parties.

Mansfield v. Atchison, 11 Dec. 1829, 8 S. 243; Landale v. Todd, 9 S. 268; Western Bank, 22 D. 447; M'Neill v. Scott, 4 M'Ph. 468.

It was argued for the respondents that there was plainly contingency between the actions, as the parties were the same, as also the subject-matter, viz. the division of the trust-estate, and that a decision in any one of the cases would very materially affect the other. It was therefore argued that this was a clear case for conjoining the actions, and remitting the First Division action under the 9th section of the Procedure Act of 1808, to the Second Division, in which Division the original action was brought.

At advising—