Scottish Court of Session Decisions

This was an action by Mrs Agnes Turnbull, widow, against James Veitch for payment of certain sums of money which she alleged to be due to her by the defender.

The pursuer, who after the raising of the action was served as executrix-dative of her deceased husband, lodged in process the following minute:—“The said Mrs Agnes Wood or Turn—bull, widow, residing at 17 Exchange Street, Jedburgh, executrix-dative qua relict to the deceased George Turnbull, sometime tinsmith, Jedburgh, craves to be allowed to sist herself as a pursuer for all right and interest competent to the late George Turnbull in the action at the instance of Mrs Agnes Wood or Turnbull, widow, residing at No. 17 Exchange Street, Jedburgh, pursuer, against James Veitch, butcher, Anerum, near Jedburgh, defender.”

On 24th January 1889 the Sheriff-Substitute ( Spiers) repelled a plea of “no title to sue” by the defender, allowed the pursuer to sist herself as craved, and allowed a proof.

The defender appealed to the Sheriff, who on 26th February recalled the Sheriff—Substitute's interlocutor of 24th January 1889; refused the erave of the minute, and refused also the pursuer's motion (made at the debate), alternatively to the said minute, to be allowed to amend the petition by adding after the pursuer's designation, the words, “as executrix of the deceased George Turnbull and as an individual.”

“ Note.—It is settled that a new pursuer cannot be sisted in an action without the consent of the defender— Morrison v. Cowans, 1 R. 116. Further, it was settled by the case of Smith v. Stoddart, 12 D. 1185, which closely resembles the present, that a summons raised by a widow in her individual capacity could not competently be amended to the effect of libelling that she Sued also as executrix of her husband. In Hislop v. Macritchie, 8 R. (H. of L.) 96, Lord Watson observed that the Court of Session Act 1868, sec. 29, which is practically the same as the Sheriff Court Act 1876, sec. 24, did not alter the law on this subject, and I am of opinion that the Sheriff Court Act does not do so. I therefore hold that it is not competent for the pursuer either to have herself sisted as a new pursuer, as she asks in the minute, or to have the summons amended to the effect of allowing her character of executrix to be inserted in it. I cannot do more with the case at present, as the pursuer avers that the debt is due to her as an individual. I have accordingly remitted the cause to the Sheriff-Substitute for further procedure; but the pursuer and her advisers would do well to consider seriously whether they can succeed in this action with the instance of the summons as it at present stands. On the statements and admissions made by the pursuer's agent at the debate, it appeared to me that if any debt is due for the aliment of the defender's child during the lifetime of the pursuer's husband, that is not a debt for which the pursuer is entitled to sue as an individual, but only as executrix of her husband. I understand that the pursuer had no separate estate during her husband's lifetime, and that the said child lived in family with her husband. If this is so, then assuming the claim for aliment to be otherwise well founded, it would seem the best course for the pursuer to abandon this action and raise another at the instance of herself as executrix of her husband and as an individual. It must not be supposed, however, that I advise the raising of another action. The pursuer must consider in the light of the averments made by the defender whether she has a good case or not.”

Thereafter on 6th March the pursuer lodged a second minute in these terms:—“Riddoch, for the pursuer, craves the Court to allow the pursuer to amend her petition, in order that she may sue the action at her instance as ‘executrix-dative qua widow of the late George Turnbull, tinsmith, Jedburgh, and as an individual,’ or otherwise to sist process until a supplementary action is brought at the pursuer's instance as executrix-dative of her said husband, the late George Turnbull, against the defender, in order that the actions may be conjoined.”

On 21st March the Sheriff-Substitute refused to grant the crave of this minute, and on 13th June, after evidence had been led, he assoilzied the defender from the conclusions of the action.

The pursuer appealed, and argued—The question was whether the minute of the pursuer should have been granted. The terms of section 24 of the Sheriff Courts Act 1876 were broad enough to cover the amendment proposed. “Record” embraced the petition, and therefore an error in the petition might be amended. The object of the amendment was to raise the real question in controversy between the parties, which was whether the defender was liable to the pursuer in the sums claimed— Smith v. Stoddart, July 5, 1850, 12 D. 1185, per Lord Dundrennan, 1187; Morrison v. Gowans, November 1, 1873, 1 R. 116. It was not maintained on the merits that these sums were due to the pursuer as an individual.

The respondent was not called on.

At advising—