Scottish Court of Session Decisions

James Martin, 75 Finnieston Street, Glasgow, complainer, presented a note of suspension and interdict against (first) Richard M'Ghee, 69 North Street, Lurgan, and another, the trustees of the National Sailors and Firemen's Union of Great Britain and Ireland, 178 Broomielaw, Glasgow, and (second) the said Union, respondents, in which he craved the Court to interdict the respondents from, inter alia, “asking, collecting, or receiving from the members or branches of said Union contributions or levies for the purpose of promoting labour representation in Parliament, or for the purpose of paying parliamentary election expenses for the purpose of securing or maintaining parliamentary representation, or for any other parliamentary or political purposes.”

The complainer having died while the case was standing in the procedure roll, his widow, who had been appointed his executrix, lodged a minute stating that she desired to sist herself as complainer. On 29th November the Lord Ordinary ( Cullen) refused the minuter's motion. On January 31st the Court recalled the Lord Ordinary's interlocutor, sisted the minuter in terms of her minute, reserving all questions as to her right to insist in the cause, and continued the cause (see ante, p. 223).

Thereafter the cause was again heard, when it was argued for the reclaimer—The case should be sent back to the Lord Ordinary to proceed. The Act of 1696, cap. 15, took away the necessity for an act of transference in the case of representatives of a pursuer who were willing to sist themselves, and it substituted a minute and motion, and the Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 96, provided similarly for the transference of actions against defenders—Mackay's Manual, 256–257; Shand's Practice, vol. ii, p. 538; M'Culloch v. Hannay and Others, December 24, 1829, 8 S. 122. When a pursuer died after litiscontestation, there was vested in his representatives a right to carry on the action— Ritchie v. Ritchie, March 11, 1874, 1 R. 826; Stair, iv, 40, 8; Ersk., iv, 1, 69 and 70. If a pursuer had an interest when the action was raised, the Court did not minutely scrutinise his interest at later stages— Good-all v. Bilsland, 1909 SC 1152, 46 S.L.R. 555. Here the present pursuer had an interest to recover expenses incurred, and that was a sufficient interest— Ammon v. Tod, 1912 S.C. 306, 49 S.L.R. 244. But further, she had an interest in that if, as she maintained, the levies were illegal, the estate of her husband might be liable for his illegal actings, and it was to the interest of the estate to know that now rather than at some future date. Reference was also made to Consolidated Act of Sederunt, B I, 1 (p. 26).

Argued for the respondents—In the early stages of an action where no great expense had yet been incurred, and there was prospect if the action continued of considerable expense being incurred, the Court should not allow the representative of a deceased pursuer to insist in an action in the subject—matter of which the representative had not then either title or interest— Dobie v. M'Farlane, June 17, 1856, 18 D. 1943. The representative had not only no interest here but no title. She was not eadem persona with the deceased. The membership of the union was intransmittable, and accordingly, as she had no right in respect of which the action was maintained, she had no title to insist in it—Mackay's Manual, p. 259. In Goodall ( cit. sup.) the question of interest was not argued, but in any case the pursuer there remained the same. In Ritchie ( cit. sup.) it was clear that the trustees who were sisted had a patrimonial interest.

At advising—