Scottish Court of Session Decisions

The Codifying Act of Sederunt, Book B, Chap. I, enacts—Section 1—“Where an action or other proceeding has been commenced in the name of the wrong person as pursuer, or where it has been commenced without a person whose conjunction may be deemed necessary to make a good instance, or where it is doubtful whether it has been commenced in the name of the right person, the Court or Lord Ordinary if satisfied that it has been so commenced through bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, may allow any other person to be sisted as pursuer in substitution for, or in addition to, the original party, on such terms as to expenses as the Court or Lord Ordinary shall deem proper.” Section 3—“Where a party sues or is sued in his own right, but it appears that he ought to have sued or been sued in a representative character, the Court or Lord Ordinary may, at the instance of either party, on such terms as to expenses as to the Court or Lord Ordinary shall seem proper, amend the record accordingly; and thereupon the action shall proceed in all respects as if the proper description of the

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party had been given in the summons or other writ.”

John George Hay Rackstraw, Monkwearmouth, Sunderland, England, as one of the heirs of entail under a disposition and deed of tailzie, dated 14th June 1809, pursuer, brought an action against Miss Elizabeth Bryce Douglas, Edinburgh, and others, defenders, in which he craved the Court to reduce a decree dated 14th and recorded in the Register of Entails, 28th July 1914, granting the prayer of a petition presented by the defender Miss Elizabeth Bryce Douglas for authority to record an instrument of disentail under the Entail Acts, and also for reduction of the instrument of disentail, and of certain procedure following on the decree.

In the course of the action the pursuer obtained a disposition and assignation from Andrew Hay, the next heir of entail entitled to succeed after the defenders, under the deed of tailzie, whereby Andrew Hay conveyed to the pursuer “All and whole the lands and others described in the disposition and deed of tailzie, and other subjects therein mentioned, together with his whole right, title, and interest, present and future, vested and contingent, to the lands, subjects, and others therein conveyed, but under the declaration therein written;” and gave to the pursuer full power and authority to use his name in challenging all deeds and acts which had been or might be done to the prejudice of his (the said Andrew Hay's) rights and interests, and particularly the instrument of disentail brought under reduction in this action.

The pursuer then moved the Lord Ordinary ( Ormidale) for leave to amend the record, inter alia, by adding to the instance the pursuer's title as assignee of Andrew Hay.

On 29th June 1918 the Lord Ordinary allowed the amendments.

In the record as amended the pursuer pleaded—“2. The pursuer, as one of the heirs of entail under said disposition and deed of tailzie, et separatim as disponee and assignee of the said Andrew Hay, the next heir under the said disposition and deed of tailzie after the defenders first and second mentioned, has a good and sufficient title to pursue this action, and to obtain decree in terms of the conclusions of the summons.”

The defenders pleaded—“1. The action as amended is incompetent 2. The pursuer has no title to sue, in respect that (1) he is not a legitimate descendant of an heir under the deed of entail founded on, and (2) the disposition and assignation founded on is not habile to convey to the pursuer the rights of an heir under the said deed of entail.”

On 3rd December 1918 the Lord Ordinary sisted the process to allow the pursuer, if so advised, to bring an action of declarator establishing the putative marriage averred on record.

Opinion, from which the facts of the case appear:—“The pursuer sues this action on two different titles, first, as himself, an heir of entail under the disposition and deed of tailzie of Burnbrae; and second, as the assignee of Andrew Hay, who, he says, is the next heir under the deed of tailzie after the defenders first and second mentioned.

His claim to be himself an heir of entail admittedly depends, in the first place, upon whether his mother Hannah Hay was a legitimate child. She was the offspring of Robert Hay, the eldest son of the entailer's nephew Robert and Hannah Lauder, but at the time of Robert Hay's marriage to Hannah Lauder he had been already married, and both then and at the date of the birth of the pursuer's mother his first wife was still alive. The pursuer, however, avers that his mother was entitled to the status of a legitimate child, because her mother again, Hannah Lauder, was in good faith and ignorant of any impediment to her marriage with Robert Hay—in other words, he claims that his mother was the child of a putative marriage. He avers, further, that his grandfather Robert Hay was born in Scotland and retained his domicile of origin until his death.

“The pursuer asks for a proof, that he may establish the facts of his father's domicile and the putative marriage.

[ His Lordship then dealt with the question of whether the legitimacy of the pursuer's mother fell to be determined by the law of England or the law of Scotland and reached the conclusion that it should be determined by the law of Scotland.]

If that is so, then the pursuer is entitled to prove if he can the putative marriage of his grandmother….

I shall therefore sist this action to allow him, if so advised, to raise such a declarator.

I do not at this stage decide the question as to the pursuer's title to sue as assignee of Andrew Hay.

If he is himself an heir of entail, as he says he is, although not the nearest heir after the defenders, he has nevertheless a title to sue, and it is not necessary to sist any other person for the determination of the real matter in dispute. On his own statements and relative pleas-in-law—all of which he still maintains—he is not the wrong person; the conjunction with him of another person having an independent title is not necessary to make a good instance, and it is not doubtful that the action has been commenced in the name of a right person. The provisions of the C.A.S., B. I, on which Mr Scott said he relied, do not therefore apply.

If the pursuer should fail to establish a putative marriage, then he will have commenced the action without either title or interest, and totally different considerations will arise in determining as to the competency and otherwise of his title to sue as assignee. I see no good reason for dealing with that question now.”

The pursuer reclaimed, and at the hearing both parties concurred in stating that they did not wish the interlocutor sisting the case to stand.

Argued for the pursuer and reclaimer—The pursuer was entitled to the benefit of the Codifying Act of Sederunt, B. I, sections 1 and 3. He had originally brought the action in his own name as an individual.

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There was, however, a defect in his title of which he was not then aware, and he was entitled to have the representative capacity which he had since acquired as assignee of Andrew Hay added to the instance, and to proceed with the action as his assignee— Paxton v. Brown, 1908 S. C. 406, 45 S. L. R. 323; Klein and Others v. W. N. Lindsay and Others, 1909 (O.H.), 1 S.L.T. 89; Doughty Shipping Company, Limited v. North British Railway Company, 1909 (O.H.), 1 S.L.T. 267.

Argued for the defenders and respondents—The pursuer was not entitled to the benefit of the Codifying Act of Sederunt. He was not introducing a new pursuer, and he held no representative capacity such as an executor. The Court had a discretion under the sections founded on, and the Codifying Act of Sederunt could not be read so widely as to allow anyone to become a party to an action in which he had no concern. The present case was ruled by Symington v. Campbell, 1894, 21 R. 434, 31 S.L.R. 372. Reference was made to Summerlee Iron Company, Limited v. Caledonian Railway Company, 1911 S.C. 458, 48 S.L.R. 536.