Scottish Court of Session Decisions

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

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