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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ness v. Mills' Trustees [1923] ScotLR 459 (19 May 1923)
URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0459.html
Cite as: [1923] SLR 459, [1923] ScotLR 459
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SCOTTISH_SLR_Court_of_Session
Page: 459↓
Court of Session Inner House First Division.
(Single Bills.)
[
v.
(Reported ante, January 17, 1923, supra, p. 241.)
Facts:
In an action of declarator and payment against testamentary trustees an interlocutor assoilzieing the defender was pronounced in ignorance of the pursuer's death. On the application of the pursuer's executrix the Court sisted her as pursuer in room of the deceased and of new assoilzied the defenders.
The circumstances in which the action was raised are narrated in the previous report ut supra.
On the 17th January 1923 the Court assoilzied the defenders. Thereafter a note was presented to the Lord President by Mrs Stewartina Mary Ness or Scott, which included the following passage:—“Since the said interlocutor [viz., the interlocutor of 17th January assoilzieing the defenders] was pronounced it has come to the knowledge of the pursuer's agents that the said Mrs Mary Stewart or Ness died on 29th November 1922. The minuter is her sole accepting
Page: 460↓
executrix nominated and appointed by her settlement dated 21st June 1922. In these circumstances the minuter desires to be sisted as executrix foresaid in room and place of the said Mrs Mary Stewart or Ness as pursuer in this action. It would also appear to be necessary to rehear the parties, or to have the said interlocutor repeated without a rehearing. The minuter without acquiescing in the terms of the said interlocutor is prepared to concur in the latter course.” Counsel for the minuter cited the case of Gibson's Trustees v. Gibson, 7 Macph. 1061.
Counsel for the defenders stated that he did not oppose the motion.
The Court sisted the minuter as pursuer in the cause, and of new assoilzied the defenders from the conclusions of the summons.
Counsel for Minuter— Keith. Agents— Simpson & Marwick, W.S.
Counsel for Defenders— J. A. Christie. Agents— Henderson, Munro, & Aikman, W.S.