Scottish Court of Session Decisions

Section 2 of the Trusts (Scotland) Act 1891 (54 and 55 Vict. cap. 44) provides that “For the purposes of this Act … the expression ‘the Court’ shall mean any court of competent jurisdiction in which a question relative to the actings, liability, or removal of a trustee comes to be tried.” Section 8 provides that “In the event of any trustee being or becoming insane or incapable of acting by reason of physical or mental disability, or by continuous absence from the United Kingdom for a period of six calendar months or upwards, such trustee … may, on application in manner hereinafter mentioned by any co-trustee or any beneficiary in the trust estate, be removed from office upon such evidence as shall satisfy the Court of the … continuous absence of such trustee. Such application, in the case of a mortis causa trust, may be made either to the Court of Session or to the Sheriff Court from which the original confirmation of the trustees as executors issued, and in the case of a marriage-contract may be made either to the Court of Session or to the Sheriff Court of the district in which the spouses are, or the survivor of them is domiciled, and in all other cases shall be made to the Court of Session.” Section 11 of the Trusts (Scotland) Act of 1867 (30 and 31 Vict. cap. 97) provides for, inter alia, the assumption of new trustees with the consent of the Court, in the event of trustees being incapable of acting from continuous absence for six months or upwards. Section 16 provides that applications to the Court under the Act are to be by petition “in the first instance before one of the Lords Ordinary officiating in the Outer House.”

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General Johnston of Carnsalloch, Dumfries, by trust-disposition dated 28th September 1891, disponed his whole estates to his brother Patrick Francis Campbell Johnston and his three nephews, Captain Archibald Francis Campbell Johnston, Augustine Campbell Johnston, and Conway Campbell Johnston, as trustees, for the purposes set out in the trust-disposition.

General Johnston died in December 1891, and Patrick Francis Campbell Johnston in March 1892. The truster's three nephews accepted office and entered into possession of the estates.

A petition was presented in the Outer House on July 18, 1899, by Captain Archibald Johnston, craving the Court to remove the other two trustees from office “on account of their continued absence from the United Kingdom as alleged.”

The petition was presented under and in virtue of the Trust Acts, and in particular under section 8 of the Trusts Act of 1891.

The petitioner averred, and it was not disputed, that the respondents had been continuously absent from the United Kingdom for more than six months. He further averred that owing to their absence and to the fact that they would not act with him in the trust, he found it impossible to carry on the administration of the trust-estate. Answers were lodged by the respondents, who stated that they intended not to reside permanently out of the United Kingdom, and that they had only been absent on business which would shortly be completed.

The Lord Ordinary ( Kyllachy) on 22nd November 1899 pronounced the following interlocutor:—“Finds that it sufficiently appears that the trustees Augustine Campbell Johnston and Conway Campbell Johnston are abroad, and have been continuously absent from the United Kingdom for more than six calendar months, and that their absence from the country incapacitates them from the due performance of their duties under the trust: Therefore removes them in terms of the prayer, and decerns ad interim.”

The respondents reclaimed.

On 23rd December 1899 the respondents in the first-named petition presented a petition in the Bill Chamber for the sequestration of the trust-estate and appointment of a judicial factor.

The Lord Ordinary ( Pearson) reported this petition to the First Division.

Argued for reclaimers— The petition could not be competently presented in the Outer House, the Inner House being the only competent tribunal. If a statute referred to the “Court of Session,” that meant the Inner House.— Tod v. Marshall, October 23, 1895, 23 R. 36; Mitchell, July 20, 1864, 2 Macph. 1378. There being an imperative direction, it was not legitimate to refer to the provisions of the Act of 1867, and argue that by reading the two Acts together it appeared that a petition might be presented in the Outer House.

Argued for respondent—It had been the practice to present such petitions in the Outer House— Lees, May 30, 1893, 1 S.L.T. No. 51; Reid, July 20, 1897, 5 S.L.T. No. 158; Dickson's Trustees, June 5, 1894, 2 S.L.T. No 59. The Act of 1891 must be read as though forming part of that of 1867: that appeared from the first section, which bore that the Acts must be read and construed together. That being so, the tribunal appointed by the Act of 1867 for petitions of a similar character was a proper one for this petition.