Scottish Court of Session Decisions

The facts of the case are fully stated in the following portion of the opinion of the Lord Ordinary ( Ardwall):—“The present action was raised on 13th June 1906 by the pursuer as one of the next-of-kin of the deceased David Swanson, and it concludes for reduction of the last will and testament of the said David Swanson, dated 7th November 1905. The said will is in favour of the defender Mrs Manson, who is no relative of the deceased, and who with her husband and certain of the next-of-kin are called as defenders to the action, Mrs Manson being the principal defender, and the only one against whom expenses are asked except in the case of their opposing the conclusions

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of the summons. Reduction is asked upon two grounds—first, that the testator was not of sound disposing mind at the date of the deed, and, second, on the ground of facility and circumvention.

“The defender Mrs Manson states as a preliminary defence that the pursuer, because of a prior will, has no title or interest to sue the present action.

The history of the proceedings is, I think, of some importance in considering this plea. The summons was signeted on 13th June 1906; on 10th July 1906 preliminary defences were lodged. In these defences it was stated that the deceased had executed a trust-disposition and settlement dealing with his whole estate on 27th September 1900, with two codicils appended, and that the pursuer is not a beneficiary under these testamentary deeds. The pursuer states that this was the first time that the existence of this deed had been brought to his knowledge. Be that as it may, the result of his seeing this defence was that he proceeded to negotiate with such of the beneficiaries under the said deed of 27th September 1900 as were entitled to the moveable property of the deceased, with the view of coming to an agreement with them, and the result was that these beneficiaries entered into a minute of agreement with the pursuer and the whole other next-of-kin of the deceased David Swanson, dated 24th and 27th August and 3rd September 1906. By this agreement it was provided that in the event of the settlement now under reduction being reduced, and notwithstanding the terms of the prior testamentary deeds, the parties thereto agreed to divide the whole moveable estate of the deceased equally among them. This agreement was set forth on record by the pursuer at or before the adjustment, and the record was closed, inter alia, upon the averments above set forth on 23rd October 1906, production having been previously satisfied, under reservation of the defences so far as preliminary.”

The defenders pleaded, inter alia—“(1) The action should be dismissed with expenses in respect ( a) the pursuer, because of the prior will condescended on, has no title or interest to sue the present action; ( b) all parties are not called; ( c) the pursuer's averments are irrelevant.”

On 20th December 1906 the Lord Ordinary ( Ardwall) repelled the defenders' first plea-in-law, and appointed the pursuer to lodge issues for the trial of the cause.

Opinion.—[ After stating the facts above quoted]—“The case was thereafter sent to the Procedure Roll, and at the discussion there it was maintained that because the pursuer had at the date of the action being raised no interest to sue, he had therefore no title to sue, and that on the authority of the case of Symington v. Campbell, 21 R. 434, the action ought to be dismissed. This contention appears to me to be founded on a confusion between title to sue and interest to sue. In Symington's case neither title nor interest to sue existed in the person of the pursuer when the action was raised, and therefore it was dismissed, but that decision is not conclusive of the present case. Title to sue is one thing, interest to sue is another, and although in practice and pleading they are often mixed up, it is well in a case like the present to keep them distinct.

The courts of law refuse to entertain actions where the pursuer has no title to sue, because there can be no right cognisable by law without a title of some sort, and further, because no person is entitled to bring another person into Court without having been in a position before the raising of the action to give that other person a valid discharge for the claim he is seeking to enforce. If it were to be held otherwise a defender would have no security that, after meeting an action regarding a particular subject-matter, he might not be exposed to another at the instance of some other party having the real title. It must further be noted that, though a person may have an interest to sue an action he may yet have no title, and the action will therefore be bad. A familiar illustration is the case where a party has suffered heavy loss through the negligence of a law-agent and yet has been held to have no action against such law-agent because he was not his employer, the title to sue such an action depending solely on the contract of employment.

On the other hand, it has been held that though a pursuer has a title to sue, yet if he has no interest he is not entitled to insist in an action. The grounds of this rule are (1) that the law courts of the country are not instituted for the purpose of deciding academic questions of law, but for settling disputes where any of the lieges has a real interest to have a question determined which involves his pecuniary rights or his status; and (2) that no person is entitled to subject another to the trouble and expense of a litigation unless he has some real interest to enforce or protect.

It follows that while a ‘title’ is necessary to enable a person to raise an action, and the possession of such title renders an action competent, want of interest may be successfully pleaded as a defence unless the pursuer can satisfy the Court that interest exists. Want of interest was successfully pleaded in bar of actions of reduction in the cases of Strathmore v. Strathmore's Trustees, 8 S. 530, affd. 5 W. & S. 170; and Kerr v. Vaughan, 8 S. 694, affd. 5 W. & S. 718. In both of these cases it was made absolutely clear to the Court that if the reduction concluded for had been granted the pursuers would not thereby have benefitted to any extent whatever. But it is also evident from decided cases that the want of mere pecuniary interest will not be too curiously examined into provided a good ‘title to sue’ accompanied by a possible interest exists. The case of Duncan v. Duncan, 20 R. 200, is an example of this. Further, it appears from the case of Gilchrist v. Morison, 18 R. 599, that a person holding the character of next-of-kin to the granter of a deed in favour of strangers is entitled to pursue a reduction of that deed as being

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to his prejudice without satisfying the Court what precise interest he ultimately might have in the deceased's estate when the deed under reduction should be set aside. This case seems to be very much in point in considering the present. In the present case the pursuer's title to sue as one of the deceased's next-of-kin is clear, and the action was competently raised by him as possessing that title. On the action being called in Court the pursuer was met by the defence of no interest. In answer to this he might, if the circumstances had permitted, have stated that if he succeeded in setting aside the deed presently under reduction he intended to raise a reduction of the prior deed, but his answer is that since the existence of the prior deed was brought to his knowledge he has entered into an agreement with the beneficiaries under that deed or some of them, under which they are to share with the whole next-of-kin of the deceased, including himself, the whole moveable estate of the deceased in the event of the present action being successful. This minute, in my opinion, makes it clear that the pursuer has now an interest to insist in the action which he had a good title to raise. I therefore repel the defenders' plea founded on want of interest. I also repel the remainder of his first plea-in-law. The sum found due as expenses is, I have satisfied myself, a moderate estimate of the expenses of a discussion in the Procedure Roll where two counsel are employed.

The defenders reclaimed, and argued that as the respondent was excluded by the prior deed and did not propose to reduce it, he had neither title nor interest to sue.

Argued for the respondent—The agreement founded on gave him an immediate interest, and his position of next-of-kin a good title— Gilchrist v. Morrison, February 28, 1891, 18 R. 599, 28 S.L.R. 441 ( per Lord M'Laren); Duncan v. Duncan, December 14, 1892, 20 R. 200, 30 S.L.R. 167.