Scottish Court of Session Decisions

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Cite as: [1901] ScotLR 39_3, [1901] SLR 39_3

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Tuesday, October 15. 1901.

39 SLR 3

Graham

v.

Graham's Trustees.

Subject_1Process
Subject_2Motion to Sist Mandatary
Subject_3Soldier on Foreign Service.
Facts:

In an appeal from a Sheriff Court the defender moved that the pursuer and appellant, who was a soldier absent on service in China, should be ordained to sist a mandatary. The action was one of accounting, directed by the pursuer against his father's trustees. From a statement furnished by the trustees' agent to the pursuer, and produced in this action, it appeared that the pursuer would be entitled to a certain amount as legitim. Motion to sist mandatary refused.

Headnote:

Peter Macpherson Graham, gunner in the Royal Artillery, brought an action in the Sheriff Court at Glasgow against Alexander Lang and others, trustees acting under the trust-disposition and settlement of his father, the late Alexander Graham, wine and spirit merchant in Glasgow. The conclusions of the action were for an account of the trustees' intromissions, and for payment to the pursuer of the sum of £2000, or such other sum as should be found to be due to him as legitim.

In defence the trustees maintained that the goodwills of the licensed premises in which the deceased had carried on business were heritable and not moveable estate, and that unless these goodwills were treated as moveable there was no free moveable estate available for payment of legitim.

From a statement of the legitim fund on the late Alexander Graham's estates, furnished to the pursuer by the agent of the trustees, and produced in this action, it appeared that the amount due to the pursuer as legitim was £70, 9s. 9d. With reference to this statement the trustees now stated that it was not correct, in respect that it included the value of the goodwills.

On 6th July 1901 the Sheriff-Substitute ( Boyd) pronounced an interlocutor whereby he found that the goodwills could not be regarded as moveable; therefore so far sustained the defences and assoilzied the defenders; and quoad ultra allowed a proof.

The pursuer appealed to the Court of Session.

On the case being called in the Single Bills, counsel for the defenders stated that the pursuer was absent in China on active service, and moved that he be ordained to sist a mandatary— Dessau v. Daish, June 26, 1897, 24 R. 976, 34 S.L.R. 739.

The pursuer argued, that in the circumstances of the case, having regard to the facts (1) that the trustees had, according to the statement of their own agents, a sufficient sum in their hands to which the pursuer had right to secure their claim for expenses, and (2) that the pursuer had not left the country voluntarily, but in pursuance of his duty as a soldier, the motion should be refused— Simla Bank v. Home, May 21, 1870, 8 Macph. 781, 7 S.L.R. 487; Ritchie v. M'Intosh, June 2, 1881, 8 R. 747, 18 S.L.R. 528.

Judgment:

Lord President—It appears to me that there is no ground for compelling the pursuer to sist a mandatary. It is not disputed that the pursuer is a lawful child of the person whose estate is being administered by the defenders; and it is not alleged that his claim to legitim has been excluded by antenuptial marriage-contract or discharged

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by himself. Accordingly, he has a right to legitim if there is any fund out of which legitim can be paid. The only question therefore is, whether there is a legitim fund? The answer to that question apparently depends upon whether the goodwill of certain public-houses is to be regarded as heritable or moveable. Mr Fraser tells us that the Sheriff has held this goodwill to be heritable, and that there is therefore no legitim fund. But in a statement of legitim produced by the trustees themselves I find that it is set down at £422, 18s. 6d., and one-sixth of that sum, being the share to which the pursuer would have right, is £70, 9s. 9d. Under these circumstances I do not think that it would be reasonable to require the pursuer to sist a mandatary as a condition of obtaining an accounting from his father's trustees. It therefore appears to me that the motion should be refused.

Lord Adam concurred.

Lord M'Laren—I concur, and desire to add that I am much impressed by the reasoning of Lord Deas in the case cited to us ( Simla Bank v. Home, 8 Macph. 781) as to the position of a man who is abroad in the public service. It is often said that if a man is unable to find a mandatary who would be willing to represent him, he may at least return to this country and prosecute his suit. But a man who is absent on the public service may be unable to return, and on that ground deserves some consideration. The prominent point in the case is that this is a suit for the administration of an estate in the hands of defenders who are trustees. According to their own statement the pursuer is entitled to legitim; and I do not think that in claiming it he is making a claim contrary to the scope of his father's settlement, because it appears from the condescendence that the trustees were expressly directed to pay him his legitim. In these circumstances I cannot hold that this is a case in which the pursuer should be obliged to sist a mandatary.

Lord Kinnear concurred.

The case was sent to the roll.

Counsel:

Counsel for the Pursuer and Appellant— W. L. Mackenzie. Agent— H. H. Macbean, W.S.

Counsel for the Defenders and Respondents— M. P. Fraser. Agent— James Reid, W.S.
1901