Scottish Court of Session Decisions

Amy Elizabeth Jones, otherwise Somervell, residing at Spittal, Berwick-on-Tweed, “as tutrix and administratrix-at-law, and on behalf, of her son James Somers Jones, otherwise Somervell,” brought an action of reduction of “a pretended bond,” “a pretended instrument of disentail,” and “a pretended decree obtained from the Lord Ordinary officiating on the Bills.” The action was defended by John Scott Tait, Chartered Accountant, trustee on the sequestrated estates of James Somervell of Sorn.

The averments of parties regarding the pursuer's title to sue were as follows:—“(Cond. 1) The pursuer is the mother and tutrix and administratrix-at-law and guardian of James Somers Jones, otherwise Somervell, who is a pupil, and resides with her at Spittal, near Berwick. Admitted that said James Somers Jones, otherwise Somervell, is not the legitimate son of the pursuer. Quoad ultra the statements in answer are denied. ( Ans. 1) Denied that the pursuer is tutrix and administratrix-at-law or guardian of the said James Somers Jones. Quoad ultra not known and not admitted. Explained that the said James Somers Jones is not a legitimate son of the pursuer. The pursuer is a domiciled Englishwoman. She has not been appointed tutrix and administratrix of the said James Somers Jones, and she is not by the law of England his tutrix and administratrix. Neither does she hold that position by the law of Scotland.”

The defender pleaded, inter alia:—(1) The pursuer has no title to sue, in respect that she is not tutrix and administratrix of her said son, and is not entitled to sue on his behalf.”

On 1st December 1906 the Lord Ordinary ( Salvesen) sustained the first plea-in-law for the defender John Scott Tait, dismissed the action, and decerned.

Opinion.—“The pursuer here sues in the character of ‘tutrix and administratrix-at-law and on behalf of her son’ James Somers Jones, who is a pupil. The child is admittedly however illegitimate, and at

Page: 391↓

common law therefore she does not hold the position of tutrix to her son. The pursuer's counsel admitted that both she and her son are domiciled in England, but there is no averment that she holds any appointment as tutrix and administratrix of her son from an English Court, or that the law there confers upon her that character apart from appointment. In these circumstances the defender pleads that she has no title to sue an action on her son's behalf.

“The pursuer's condescendence does not contain any statement as to the law of England, nor does she aver that that law differs from the law of Scotland. It was explained to me, however, at the debate that if a proof were allowed on this preliminary point, the pursuer would be able to establish that, as the ‘next friend’ of her pupil child, she could competently sue on his behalf in England, and her counsel desired it to be inferred that, assuming he established this, the result would be that she would have a good title in Scotland. If such a case were to be made, it should have formed the subject of substantive statement of facts, for English law is a matter of fact to be ascertained by proof, and there are no facts stated on record which I could remit to probation. Apart from this I should regard such an averment, if made, as irrelevant. English rules of procedure are of no effect in a Scotch Court, which must act according to its own rules. The law of Scotland does not recognise the right of any person to sue as the ‘next friend’ of a pupil, but if an action is brought in a pupil's name because he possesses no guardians, the Court will appoint a tutor ad litem to him. As the objection is a purely technical one, I suggested at the debate that the defender might consent to having the action sisted until the pursuer obtained an appointment as administratrix from an English Court, but as this would have the effect not of completing an inchoate title but of conferring a title where none previously existed, it could not be done without the defender's consent. As the defender declined—no doubt for good reasons—to consent to such a course I have no alternative but to dismiss the action, although the result, I am afraid, will simply be to multiply procedure.”

The pursuer reclaimed. She failed to print the opinion of the Lord Ordinary or append it to the reclaiming note.

At the debate on the reclaiming note counsel for the pursuer admitted that on the averments as they then stood the interlocutor of the Lord Ordinary was not open to challenge, but he asked leave at the Bar to make a specific averment that according to the law of England the pursuer was guardian of her child and entitled to sue on his behalf.

Argued for the pursuer and reclaimer—Pursuer and her son both being domiciled in England the question of her title to sue fell to be determined by the law of that country. The mother of an illegitimate child in England was entitled to sue on its behalf as “next friend” (Rules of Supreme Court, 1883, Order XVI, Rule 16). She was prepared to amend the record to that effect. Such amendment if allowed would be relevant, and she was entitled to proof thereof.

Argued for the defender and respondent — The proposed amendment was irrelevant. The Lord Ordinary had already indicated that an amendment in these terms would, if made, be irrelevant. It was an averment of a rule of practice in the English Courts which could receive no effect in Scotland. It might have been different if the pursuer could aver that as a matter of status she had a right by the law of England to sue on behalf of her illegitimate child, but that was not what she was prepared to aver.