Orr Ewing's Trustees v Orr Ewing
| Jurisdiction | Scotland |
| Judgment Date | 13 December 1884 |
| Date | 13 December 1884 |
| Docket Number | No. 116.,No. 67. |
| Court | Court of Session |
Lord President, Lord Mure, Lord Adam.
Appeal—Appeal to House of Lords at instance of person not a party to the cause—Competency.—
In a petition for leave to appeal an interlocutory judgment to the House of Lords, presented in the name of a body of testamentary trustees who were parties to the cause, the Court, in respect it was admitted to have been presented truly at the instance of one of the beneficiaries under the trust who was not a party to the cause, postponed consideration thereof to enable the beneficiary to sist himself as a defender to the cause if so advised.
In the case of Orr Ewing, &c. v. Orr Ewing's Trustees, the circumstances of which are fully set forth in the report of the case in 11 R. p. 600, the Court, on 29th February 1884, pronounced this interlocutor:—‘Having considered the cause and heard counsel for the parties in the reclaiming note for the defenders against Lord Fraser's interlocutor, dated 15th December 1883, recall the said interlocutor: Find, declare, and decern in terms of the declaratory conclusions of the summons; sequestrate the whole estate and effects of the deceased John Orr Ewing contained in the inventory given up by the defenders in the Court of the Commissary of Dumbartonshire, and recorded in the Court books of the said Commissatiot on the 13th May 1878; nominate and appoint George Auldjo Jamieson, chartered accountant in Edinburgh, to be judicial factor on the said estate and effects, with power to him to take full and complete possession of the said estate and effects, and to hold and administer the same till the further orders of the Court, with all usual powers, and the said judicial factor finding caution before extract, in common form; suspend for the present, and till the farther orders of the Court, all action on the part of the defenders in the administration or disposal of the estate; interdict, prohibit, and discharge the defenders until the said estate and effects are fully vested in and taken possession of by the said judicial factor, from removing the said estate or effects, or any part thereof, or of the titles, writs, and evidents of the same, beyond the jurisdiction of this Court, and from delivering, paying, or accounting therefor, to any person or persons other than the said judicial factor, and decern; allow interim extract, dispense with the reading in the minute—book, and allow extract to be issued forthwith, reserving in the meantime all questions of expenses.’
Thereafter the Court, in a note presented by the judicial factor (see 11 R. p. 682), by interlocutor of date 7th March 1884, granted warrant to the judicial factor to take full and complete possession of all sums of money belonging to the trust-estate of the said deceased John Orr Ewing, and of the whole writs, titles, and securities, books, papers, and documents, of and concerning the same, wheresoever, or in whose hands soever, the same might be found; and granted warrant to and ordained the Royal Bank of Scotland to pay to the judicial factor the sums of money mentioned in the note belonging to the trust-estate; and granted warrant to and ordained the companies mentioned in the note to transfer the stocks and others therein specified to the name of the judicial factor.
Thereafter the Court, in a further note presented by the judicial factor, by interlocutor of date March 12, 1884 (11 R. 685), granted warrant to ‘messengers-at-arms to search for, recover, and take possession of the several books, certificates, bonds, and other documents specified in the schedule thereto annexed, and, if necessary for that purpose, to open all shut and lockfast places, and to deliver the said several books, certificates, bonds, and other documents, when recovered, to the judicial factor.’
On 22d May 1884 a petition was presented in name of the deceased John Orr Ewing's trustees, praying the Court to grant authority ‘to the petitioners to present a petition of appeal to the House of Lords, in common form, against the said interlocutor of the Lord Ordinary, dated 15th December 1883, and against the interlocutors of your Lordships, dated respectively 29th February and 7th and 12th March 1884.’
The petitioners produced the following excerpt from a judgment, of date 13th May 1884, pronounced by Mr Justice Chitty in the administration suit in re Ewing v. Ewing in the Chancery Division of the High Court of Justice in England:—‘The order I propose to make will be to the following effect:—The Court being of opinion that it will be for the benefit of the infant plaintiff [Malcolm H. O. Ewing] that an appeal should be brought to the House of Lords from the interlocutors of the Court of Session, and the defendants, the trustees, by their counsel at the bar submitting that if such an appeal is brought the same may be conducted in their names by the plaintiff's next friend on a proper indemnity, let the plaintiff's next friend be at liberty to bring and prosecute in the names of the defendants, an appeal to the House of Lords from the interlocutors of the Court of Session, and also with a view to such appeal to make such application as he may be advised in the names of the defendants to the Court of Session for leave to appeal, and declare that the funds in Court representing the infant's share or interest in the trust-estate are to stand charged by way of indemnity to the trustees against any liability they may incur by reason of their names being so nsed as aforesaid; but this declaration is without prejudice to any question how and by what funds the costs and expenses of and relating to such appeal and application to the Court of Session ought ultimately to be borne; liberty for the plaintiff's next friend to give or provide necessary security for the purposes of the appeal to the House of Lords; and the Court being also of opinion that it will be for the benefit of the infant plaintiff that, pending such appeal, the proceedings under the judgment should be suspended, let the further prosecution of the accounts and inquiries directed by the judgment be stayed until further order; adjourn the rest of the defendant's motion, and the plaintiff's two summonses, with liberty to any person interested to bring them on again on two days” notice.’
When the petition appeared in the Single Bills of the First Division, John Orr Ewing and others, the pursuers in the action against the deceased John Orr Ewing's trustees in the Court of Session, compeared and contended that the prayer of the petition should not be granted, in respect that the trustees in whose name the petition was presented were not really moving in the matter, but that the parties who wished to appeal were in fact the guardian or ‘next friend’ of the infant Malcolm Hart Orr Ewing, and the infant himself, who were plaintiffs in the Chancery suit, but were not parties to the action in the Court of Session in which the interlocutors complained of were pronounced.
It was not denied by counsel for the petitioners that such was the true state of the case, but it was stated that the trustees had authorised the minor and his guardian to petition in their name.
At advising,—
Lord President.—The petition for leave to appeal is presented in name of the trustees of the deceased John Orr Ewing, the defenders in the action. But it is matter of admitted fact that these defenders have no desire to appeal, and that the petition is presented on behalf of Malcolm Hart Orr Ewing, a minor, and of his guardian, who are plaintiffs in the Chancery suit, in pursuance of an arrangement that the minor and his guardian should be allowed to use the names of the trustees in appealing to the House of Lords, and in applying for leave to appeal. The minor being interested as a beneficiary in the trust—estate, he and his guardian would have been entitled to enter appearance and plead as defenders in the action, and if they had done so they would of course have been entitled in their own names to present this petition. But there is no precedent for granting leave to appeal to a person who is not a party to the action in which the judgment to be appealed against was pronounced, merely because he has obtained permission to use the name of one who is a party to the action. We are not prepared to give any countenance to such a proceeding, and must, therefore, require, before considering whether leave to appeal should be granted at present, that the minor and his guardian be sisted as defenders in the action.
Lord Mure and Lord Adam concurred.
Lord Deas and Lord Shand were absent.
The Court pronounced this interlocutor:—‘Having considered the petition for leave to appeal presented in name of the defenders, but truly not on their behalf or by their desire, but on behalf and in the interest of Malcolm Hart Orr Ewing and his guardian, George Wellesley Hope, and having heard counsel, postpone consideration of the petition hoc statu, to enable the said Malcolm H. O. Ewing and his guardian, George Wellesley Hope, if so advised, to sist themselves as parties defenders in the action.’
* Decided May 27, 1884, but not reported earlier in respect of the terms of the interlocutor. Malcolm Orr Ewing and his guardian did not sist themselves, but appealed without leave to the House of Lords.
Lord Fraser. M., Lord President, Lord Deas, Lord Mure, Lord Shand.
Jurisdiction—Foreign—Executor—Trust funds partly in Scotland partly in England—Order of English Court on Scottish executors confirmed in Scotland—Confirmation and Probate Act, 1858 (21 and 22 Vict. chap. 56), sec. 12—Treaty of Union, 1706 (6 Anne, chap. 11), Article 19.—
Jurisdiction—House of Lords—Judgment on Chancery practice—Court of Session.—
Executor—Confirmation and Probate Act, 1858 (21 and 22 Vict. chap. 56), section 12—Effect of confirmation and sealing with seal of English Probate Court.—
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Orr Ewing's Trustees v Orr Ewing
...1884, 11 R. 600, 7th and 12th March 1884, 11 R. 682. Question of leave to appeal 27th May 1884, reported of date 13th December 1884, 12 R. 343.) On 5th August 1884 an appeal was presented in name of the trustees to the House of Lords (without leave of the Court of Session) against the inter......