Scottish Court of Session Decisions

This was an action at the instance of John Scott Tait, C.A., judicial factor on the estate of the Incorporation of Tailors, Edinburgh, against Mrs Emily Sophia Jackson or Muir and others, concluding for reduction of certain minutes of meetings of the said incorporation whereby the defender was admitted to the said incorporation. The minutes of meetings in question were dated prior to the appointment of Mr Tait as judicial factor.

The question of the validity of the resolutions recorded in the minute was before the Court in the previous case in which the facts are fully stated—see Tait v. Muir, December 19, 1902, 5 F. 288, 40 S.L.R. 242.

In the present action the defender pleaded, inter alia—(1) No title to sue.

On 16th December 1903 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor by which he decerned against the defender Mrs Muir in terms of the conclusions of the summons.

Opinion.—“This is an action at the instance of the judicial factor on the estate of the Incorporation of Tailors of Edinburgh, and it is brought for the purpose of reducing certain resolutions of that Incorporation by which the compearing defender Mrs Muir was admitted to the benefit of its widows' fund. The ground of reduction is that these resolutions were illegal, because they admitted the defender to the widows' fund without payment, or rather for payment of entry-money which was taken out of the funds of the Incorporation. In a previous action in this Court, to which Mrs Muir was not a party, and which is therefore not res judicata against her, but which is nevertheless a standing judgment, these resolutions were held to be illegal, from which it followed that the defender could take no benefit under them. After that judgment was pronounced the judicial factor asked Mrs Muir whether she maintained her eventual right to share in the benefits of the widows' fund, or whether she admitted that she could not do so without her entry-money being paid in the regular way and in conformity with the rules and regulations of the Incorporation. To that demand she made no reply at all, and accordingly the present action was brought.

“Now, upon the merits of the case I propose to say nothing, because I am content to rely upon the previous judgment of the Court. I confess that I have heard nothing to-day to convince me that the resolutions in question were other than entirely illegal, and there I leave the merits of the case.

But then it is said that the pursuer has no title to sue the action, and the ground of that plea, as I understand it, is that he is not entitled to complain of anything that took place before the date of his appointment. Now, that is rather a hard saying when one knows that he was appointed for the very purpose of taking the affairs of the Incorporation out of the hands of its existing managers, and in respect of very serious misappropriation of funds by them. If there were anything in this plea it would have been stated and considered in the previous action. It was so stated and it was disregarded. Accordingly I have no hesitation in holding that the pursuer has not only a title but the sole title to sue the present action.”

The Lord Ordinary then dealt with another question raised in the case.

The defender reclaimed—In support of her plea to title the following authorities were cited— M'Gregor v. Beith, May 24, 1828, 6 S. 853; Gordon v. Williams’ Trustee, July 16, 1889, 16 R. 980, 26 S.L.R. 750.

Counsel for the respondent were not called upon.