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decision of your Lordships' House upon the former appeal from the English decree. It declares (in effect) that the trustees, the appellants, are to be treated by the Court of Session as wrongdoers in Scotland, and as violating their trust, if they submit to and obey in England the decree of the English Court which was affirmed by your Lordships' House.
If it were necessary to enter into the question whether there may not have been in this case some excess of its own jurisdiction on the part of the Court of Session, I should be disposed to say that although the Courts of any country may affirm their own competence, and may decline to give effect to the proceedings or orders of a foreign court, they have no authority to determine the extent or limits of the jurisdiction of that foreign court within its proper territory. They may be entitled to exercise all powers which they possess by way of injunction or interdict against a plaintiff or actor in a foreign suit when within their jurisdiction, so as to restrain him from further proceeding in the foreign forum (as was done by the Court of Session in Young v. Barclay, 8 D. 774), on the same principle on which English Courts of Equity were accustomed to restrain the prosecution of actions at common law. But there is neither principle nor precedent that I am aware of for restraining a defendant sued in a foreign court by a plaintiff not capable of being enjoined or interdicted, or not enjoined or interdicted in fact, from obeying, while within the foreign jurisdiction, the orders, lawful according to the lex loci, of that foreign court.
Without dwelling further on that point I pro. pose to examine the reasons assigned for the declarator in the present case. The first declaration seems to assume that there is a something in the terms of the trust created by John Orr Ewing's will probibitory of or repugnant to any administration of the trust-estate elsewhere tban in Scotland, and the Lord President has treated the pursuer's demand as, for that reason, ex debito justitiæ, saying—“If the defenders, as trustees and executors, had voluntarily proposed to remove the estate out of Scotland for the purpose of carrying on the administration elsewhere, it will hardly be disputed that the pursuers would have been entitled by interdict to prevent this being done.” For that view I am unable to discover any foundation in the terms of the trust-disposition and settlement. It is true that the trust is created by a Scotch deed, and is technically a Scotch trust. But there are no words requiring the administration of the funds belonging to the residuary estate, when realised by the trustees, to be in Scotland only; on the contrary, the trustees are authorised to invest the whole or any part of these funds in real securities (not restricted to Scotland), or in personal securities of certain specified kinds in any part of Great Britain or Ireland, or of the British colonies or dominions. If in the honest exercise of those powers they had invested these funds in English securities, they would have been acting in accordance with their trust, and I do not understand on what principle they could have been interdicted from so doing. The fact that they have not done so cannot alter the terms of the trust or justify a declaration not warranted thereby.
In support of the remaining declarations the
Inner House seems to have mainly relied upon the reasons alleged in the opinion of the learned Lord Ordinary. These, and the Scottish and American authorities to which tbe Lord Ordinary referred, turned partly upon the doctrine of domicile and partly on that of principal and ancillary administrations.
So far as relates to domicile, it has always appeared to me to be clear that the domicile of a deceased testator or intestate cannot in principle furnish any governing or necessary rule, except for the purpose of determining the succession to moveable estate. For that purpose recourse must be had, not always and necessarily to the Court, but always and necessarily to the law of the domicile. The succession being once ascertained, the rights resulting therefrom belong to and follow the person of the living successor and not the dead predecessor. It has never been held that the forum in which such rights may be vindicated depends on the domicile (as distinguished from the place of residence for the time being, which is sometimes inaccurately so denominated) either of the plaintiff or of the defendant in any action or suit, and if the domicile of the living men whose rights and liabilities are in question is for that purpose immaterial, I am unable to understand how the place in wbich these rights are to be protected, or those liabili. ties enforced, can necessarily depend on the domi. cile of the deceased.
Lord Westbury did indeed in the English case of Enohin v. Wylie (10 House of Lords p. 1), express an opinion (unsupported, so far as I can see, by any other authority, and inconsistent, as I read them, with the general tenor, both of the English and of the Scottish, and even of the American authorities) to this effect, that "the Court of the domicile is the forum concursus to which the legatees under the will of a testator, or the parties entitled to the distribution of the assets of an intestate, are required to resort” (ibid., p. 13). He said more to the same effect in other passages of his opinion, and he would have thought it rigut, but for the conduct of some of the parties, to send to Russia English assets in the hand of an English administrator of an Englishman who died domiciled in Russia, for distribution by the Russian Courts, although in that case all reasons of convenience, if proper to be regarded, appeared to be the other way. Lord Fraser and Lord Mure ascribe to this opinion greater weight apparently than to the late decision, also in an English case, of your Lordships' House. But as was there pointed out (Ewing v. Orr Ewing, L.R. 9 Appeal Cases, p. 39) the majority of the Lords who decided that appeal of Enohin v. Wylie (Lord Cranworth and Lord Chelmsford) dissented from Lord Westbury's opinion. Lord Mure indeed thinks that they did not dissent from it, which induces me to quote what they actually said. Lord Cranworth (10 House of Lords, p. 19) said that where there is a will of a person domiciled abroad, "and probate of it has been obtained here, the duty of the Court in administering the property, supposing a suit to be instituted for its administration, is to ascertain who by the law of the domicile are entitled under the will, and that being ascertained, to distribute the property accordingly. The duty of administration is to be discharged by the Courts of this country,
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though in the performance of that duty they will be guided by the law of the domicile.” Lord Chelmsford (ibid., p. 24) after stating the circumstances said—“Why the property should be remitted to the forum of the domicile in order that it shall be sent back again to be distributed, and why the Court should be incompetent to act effectively and finally in the suit which has been instituted, by decreeing a distribution amongst the several persons entitled, and transmitting to Russia the shares of the next-of-kin resident there, I am unable to comprehend."
The other point, as to principal and ancillary administrations, seems to me to be not germane to the present case.
The authorities upon it, both British and American, relate to the proper consequences and effects of the title and office of legal personal representative conferred by a grant of probate or letters of administration, or by confirmation in Scotland, which always have reference to the situs of the moveable property of the deceased person within the local jurisdiction of the Court making the grant. These questions usually arise when one person is principal and another “ancillary" executor or ad. ministrator. And here it may be convenient to observe that the word “administration” is capable of being, and is in fact, often used in three distinct senses, and that some confusion in certain parts of the reasoning of the learned Judges in the Court below appears to have arisen from want of a sufficient discrimination between those senses. The first and most technical sense is that of the official character of legal personal representative conferred by the act of a Court of probate or confirmation. The second is that of the management and distribution by an executor or administrator (and in this sense the word is not less applicable to management by a trustee) extra curiam. The third is that of a judicial administration of the estate, under the decree or order of a competent Court, for the purpose of taking the accounts and superintending the management and making proper distribution among the persons entitled. It was in the first only of these three senses that Lord Cranworth used the word in the passage quoted by Lord Mure from Enohin v. Wylie- "Administration will be granted here, limited to the personal estate in this country”—from wbich the infer. ence drawn by Lord Mure was that Lord Cranworth (and Lord Cottenham also in Preston v. Melville, to which case Lord Cranworth referred with approval) held “the situs of the property to regulate the right to administer that property." Doubtless in the first sense (that of the grant of probate or letters of administration by the forum rei sitæ), but in that sense only, that inference is correct ; but though correct, it is for the present purpose irrelevant. I can hardly suppose Lord Mure to have understood either Lord Cranworth or Lord Cottenham as meaning to exclude (contrary to the general current of English authorities) the power of the Courts of the domicile at all events to make a general decree for the administration (in the third sense above explained) of the whole estate of any testator or intestate who might have died leaving assets in several states or countries, in respect of which several grants of probate or administration (whether principal or ancillary) might have been obtained-working out such a decree in the best
way practicable as to assets not within the local jurisdiction.
In the case before your Lordships the fiduciary character is not divided. The same persons are legal personal representatives in both countries, and they are also trustees for the beneficiaries under the testator's will. The remedy (both in England and in Scotland) has been sought, not on the footing of those duties and liabilities which result from the official character of the legal personal representative, but on that of trust, under the trust-disposition and settlement. The distinction between a mere executor or administrator (whether acting under a principal or ancillary, a general or a limited grant) and a trustee under a trust-disposition is well understood in the Courts both of Scotland and England. It cannot make any difference as to the forum in such a case whether the trustees in whom the residuary estate is vested are or are not the same persons who as executors obtained probate or confirmation. The rights of the plaintiffs in both countries, and the remedies against the defendants, ought to be precisely the same so far as relates to the trust-estate, whether the defendants were original or afterwards assumed trustees, or were or were not executors as well as trustees.
Having examined the authorities, both Scottish and American, which were referred to in the opinions of the learned Judges of the Court of Session, and the arguments at your Lordships' bar, I will first refer to the Scottish authorities, which, as far as they go, must be of principal importance for the determination of this appeal.
There is a difference between the course of the Courts in England and Scotland respectively as to the grounds which are held sufficient for a general judicial administration at the instance either of fiduciaries or of beneficiaries. The Court of Session will not in either case interfere with the administration extra curiam except for some special cause shown. The English Court, on the other hand, regards the mere exoneration of fiduciaries from the risks and responsibilities of an administration extra curiam, and the better security for the interests of beneficiaries afforded by a judicial administration, as sufficient reasons generally for its intervention.
Which may be the better practice cannot now or here be determined. In each country the rule to which its Judges and suitors are accustomed may probably be preferred. It appears also that the doctrine of forum conveniens, which in England seldom comes into consideration when jurisdiction exists apart from service of process abroad unless there is an actual competition of suits, is in Scotland carried further, and may prevent the exercise of jurisdiction when the Court is satisfied that the suit might have been brought and effectively prosecuted in a more convenient forum, although this may not actually have been done. These, however, are in my judgment differences affecting not the jurisdiction but the lex fori by which the Courts are to be governed in exercising or declining to exercise it.
That a Scottish Court may act in personam when the pursuer and the defender are within its jurisdiction, although the subject matter of the suit may not be so, seems indisputable. Johnston v. Johnston (M. 4788) is an instance as old as 1579, where the subject-matter was real estate beyond the jurisdiction. If in the case of im.
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moveables the situs rei does not exclude the jurisdiction, there is no intelligible principle on which it can be held to be excluded by the mere situs in the case of moveables.
Ferguson v. Douglas (3 Pat. Ap. Ca. 523) was a case which came to the House of Lords in 1796. The pursuers there claimed against the estate of Andrew Grant, who had died domiciled in England, and whose assets do not appear to have been wholly or even partly in Scotland, not as being directly creditors of Andrew Grant himself, but as creditors of Baron Grant, of whose per. sonal estate Andrew had been the representative. Andrew's estate was represented by trustees, defenders in the suit, who resided chiefly in England, and had taken out letters of administration in the Prerogative Court of Canterbury, but who do not appear to have obtained confirmation in Scotland. There was a suit pending in England for the administration of Andrew Grant's estate, and as it was necessary that the liability, if any, of Andrew Grant for assets of his brother, received by him and not duly administered, should be established before the pursuers could in any way substantiate their claim, the House of Lords held that they ought to go in and take such proceedings as they might be advised under the English decree. But Lord Loughborough said—“I have no doubt as to the competency of the Court of Session in a case where either the persons of executors or effects of the deceased are within their jurisdiction. No matter where the will was made or proved, the Court has full jurisdiction, and could carry their judgment into effect, and this might be even where the will has reference to the law of England.”
In Morrison v. Kerr (1790, M. 4601) it was held that an English administrator living in Scotland might be sued there by next-of-kin for their distributive shares of the estate, and the action was sustained against the representatives of such an English administrator although he offered to appear to any suit which might be brought in England.
Iu Peters v. Martin (1825, 4 Shaw, 108), Martin, sole surviving executor and trustee under an English will, the property being situate partly in England and partly in colonies governed by English law, and having come after the lapse of 20 years to reside in Scotland, was sued in the Court of Session by beneficiaries under the will for implement of the trusts, op an allegation (the trath of which was admitted) that he had in his hands a balance of £7800 not then invested as directed by the will. Martin objected to the jurisdiction on the ground that the action related solely to an English trust, and that the implement of the will could only be judged of in an English Court, in which also he could get a discharge.
The Lord Ordinary sustained the jurisdiction. Martin reclaimed, stating that he had filed a bill in the English Court of Chancery relative to the matter, and the Inner House, after suspending the case to see what might follow, and it appearing that
effectual procedure had followed, and that no orders of the Court of Chancery could be enforced against the defender while in Scotland, adhered. Their Lordships, while satisfied that the case ought, as a matter of expediency, to be settled in an English Court, held that they could not deprive the pursuers of
their legal right to sue a party domiciled within their jurisdiction, and to obtain security for the balance in his hands. This case affords a good illustration of the difference between the doctrine of forum competens and that of forum conveniens.
Iu Macmaster v. Stewart (1834, 11 Shaw, 731) an action was brought in the Court of Session by residuary legatees under an English will against parties domiciled (that is, as I understand it, resident) in Scotland who bad administered the will, which had speciallydirected “the English Court of Chancery to be the forum in the event of legal discussion,” and “the ad. ministrators having, in obedience to an order of the Lord Ordinary, filed a bill in that Court, and it being ascertained by the opinion of counsel that they might be compelled to account, the Court sisted further procedure hoc statu.” The Inner House adhered, holding that as the Lord Ordinary had “only sisted procedure hoc statu" he had "adopted the most expedient course.” But the Lord President (Hope) said—“If any improper delay is allowed by the defenders to occur in their accounting in England it is open to the pursuers to go to the Lord Ordinary and crave his Lordship to proceed here;" and Lord Mackenzie said-“It may happen that circumstances may occur before the close of the account. ing in England which will make it necessary to go on with the accounting here."
I readily accept the exposition of these and some other Scottish authorities which will be placed before your Lordships by my noble and learned friend Lord Watson, especially as to the manner in which the doctrine of forum conveniens is understood and acted on in the Court of Session. But for the declaratory part of the principal interlocutor now under appeal, which affirms, not the greater convenience under the circumstances of this case, but the exclusive competency of the Scottish jurisdiction, I can find no support in these authorities, but rather the reverse.
Upless the learned Judges in the Court below considered the decision of tbis house in Preston v. Melville (1841, 2 Robinson's Appeal Cases, p. 88) to be at variance with and partially to have overruled these authorities, I can bardly understand the reliance which all of them, and especially Lord Deas, appeared to have placed on that
In the observations which I am about to make upon it I shall do little more than enlarge what was said in this House in the English ap. peal of Ewing v. Orr Ewing.
Preston v. Melville was a case of trust under the will of a Scottish testator domiciled in Scotland wbo left assets in England as well as in Scotland. The trustees were not executors. Lady Baird Preston, who had been confirmed executrix as next-of-kin in Scotland, and had also taken out letters of administration in England, was not a trustee. Two suits for the administration of the English assets had been instituted and were pending in the English Courts of Equity before the commencement of any proceedings in Scotland. In the first the trustees were plaintiffs, and the administratrix defendant, in the second the ad. ministratrix was plaintiff and the trustees were defendants. The trustees in this state of circumstances raised an action for declarator and payment in the Court of Session, by which (the move. ables in Scotland having already been transferred
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to them) they asked that it should be declared are some peculiar specialties or clear convenience that the whole goods and effects of the deceased the administration is also to be that of the domiheld by the administratrix under the English cile"-were used as to the principles which in case letters of administration belonged to and ought of competition ought to be acted on by and to to be vested in and transferred to the pursuers for guide the judgment of a court of confirmation, the purposes of their trust, and that the pursuers' and not as to any such question as that raised by receipts and discharges would be a valid and the present case. sufficient discharge and exoneration to the ad- Some of the learned Judges in the Court of ministratrix of her whole intromissions, conclud- Session appear to have thought two statutes releing for payment accordingly. The Court of Ses- vant to the present question—the Act of Union sion decerned in terms of the declaratory conclu- between England and Scotland, and the Confir. sions of the libel, superseding (that is, postpon- mation and Probate Act of 1858. The Act of ing) the consideration of the rest. The House Union preserves to the Scottish Courts the same of Lords reversed that decree, and declared that independence of the English Courts which they the property of the testator in England ought to before possessed, and it leaves, e converso, the Engbe adıninistered by the appellant (the adminis- lish Courts in full possession of their own indetratrix) by virtue of the letters of administration pendence also. In the present case the Scottish granted to her by the Prerogative Court of Can- Court has acted (whether rightly or wrongly) in terbury.
the exercise of its independent jurisdiction, and That reversal was plainly right, for it was be- no English Court has interfered with anything yond question that the administratrix would not which it has done. The English Court has done be discharged or exonerated in England by any nothing which it might not have done if the two payment over by her to the trustees until all kingdoms had never been united, and what it did other claims to which she might be liable in her could not possibly have been upheld by this character of legal personal representative in House upon appeal if it had been contrary to England were satisfied, and that until she was the Act of Union, A like argument from the so discharged and exonerated the English assets Act of Union was advanced for a like purpose in in her hands could not properly be treated as be- Johnstone v. Beattie. Lord Broughan (who longing to or vested in the trustees for the pur- thought that the English Court had not properly poses of their trust. It was not less clear that exercised its jurisdiction in that case) expressed the English forum in which the two administra- his opinion against it in strong terms, with the tion suits between her and the trustees were substance of which I agree, though I do not think pending had proper jurisdiction to take the ac- it respectful to those from whom I differ to adopt counts of the estate so as fully to discharge and
that noble and learned Lord's language-(10 Clark exonerate her and ascertain the clear residue, if and Finnelly, p. 152). any, subject to the trusts of the will—a thing As to the Confirmation and Probate Act of 1858, which could not be done in the Scottish suit. I am unable to appreciate its bearing upon the This is all that the House of Lords determined in present question. The argument which was Preston v. Melville, and it appears to me to be urged in the English case of Ewing v. Orr quite consistent with the earlier Scottish authori. Ewing, that the appellants by obtaining confirties and with the English decision in Ewing v. mation in Scotland had become officers of a Orr Ewing and other similar cases. Some words Scottish Court in such a way as to make them used by Lord Cottenham in Preston v. Melville- for that reason accountable to Scottish Courts • The domicile regulates the right of succession, alone, was disposed of by your Lordships in that but the administration must be in the country in case, and it was not repeated at your Lordship's which possession is taken and held, under lawful bar by the learned counsel for the present authority, of the property of the deceased”-seem respondents, nor can I perceive that it was relied to have been regarded by the Lord Ordinary as on by any of the learned Judges in the Court expressing “the position taken up by the pursuers
below. A similar argument as to an English in the present action.” I cannot so regard them. administration was advanced and was rejected The competition there was for possession of by the Court of Session in the case of Morrison funds vested by the law of England in the ad- v. Ker, M. 4601. ministratrix (who claimed to retain them for the The statute of 1858 was passed for the double purposes of that administration for which she object of simplifying the procedure necessary was accountable in England) by trustees who had in Scotland for confirmation, and in all parts of nothing whatever to do with her duties, and could the United Kingdom for what it may be connot exonerate her from her liabilities, and who venient to call ancillary administration, and of ev. claimed possession of them for the purposes of a abling in the latter class of cases a single stamp trust distinct from the duty which the adminis- denoting the duty payable on the aggregate value tratrix had to perform. The only proceedings of the whole personal estate within the United for judicial administration were those then pend- Kingdom to be placed upon the principal grant, ing in England. Lord Cottenham's words refer, whether of probate or administration, in England as their whole context shows (2 Robinson, p. or Ireland, or for confirmation in Scotland, the 105-7), not to any question of forensic jurisdiction latter object being purely fiscal.
For the puror judicial administration, but to the title and poses of that Act, and for these purposes only, consequent duties and responsibilities in England as is expressly provided by sec. 17, å statement of an English executor or administrator as such. of the domicile of the deceased person in
Some observations of the Lord Justice.Clerk Scotland, or in England or Ireland, on the face Hope, in Hastings v. Hastings, 14 D. 489, were of any interlocutor of the commissary judge cited by the Lord Ordinary to which I must not granting confirmation, or of any probate or omit to refer. That was a case of confirmation. letters of administration granted in England or The words of the learned Judge-"unless there Ireland, is made conclusive evidence, that is,
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it is to determine conclusively which shall be deemed the principal grant on which the duty on the whole personal assets within the United Kingdom is to be paid, and wbich is to be followed in the rest of the United Kingdom by the procedure substituted by the Act for that previously in use. The substituted procedure is the sealing or endorsement of the instrument bearing the stamp on which the duty has been paid by the proper court in each of the other parts of the United Kingdom. It is clear that if in any case the domicile should happen to be erroneously stated on the face of the instrument so sealed or endorsed, all parties interested may assert their rights and pursue their remedies in any forum which would have been competent if that Act had never been made, nor is there anything to alter or take away any such rights or remedies when the domicile is correctly stated. The statute expressly says that the effect of a Scottish confirmation when sealed under its provisions in England or Ireland is to be the same as if a probate or letters of administration, as the case may be, had been granted by the Court of Probate in these countries respectively.
I find, therefore, nothing in these statutes or in the Scottish authorities to warrant the decla. ratory part of the interlocutors now under appeal.
The American authorities cited in the Lord Ordinary's opinion relate mainly, if not wholly, to the consequences of principal or domestic" and ancillary administration in some of the United States of America.
In those States (sec. 513a, added by the editor of 1873, to chapter 9 of Story's Equity Jurisprudence) there is a divison of jurisdictions between their probate courts and courts of equity materially different from that which prevails in England. It is impossible, in my judgment, to collect any binding rules of private international law from these authorities or from the passages in certain French books, also referred to by the Lord Ordinary. The phrase “private international law" is liable to be misunderstood. It is a convenient expression for such rules as in the jurisprudence of most civilised nations are applied ex comitate to the solution of questions depending upon foreign status, foreign laws, or foreign contracts. But no law binding proprio vigore upon any independent state can be established by generalisation from the jurisprudence of other nations. All such rules must yield to the lex loci whenever it differs from them, and in point of fact few (if any) such rules are universally accepted without some modifications or variations making it necessary to distinguish between the general principle and the forms and conditions of its local application. Even if the uniform practice of the Courts of the United States of America had been in accordance with the view taken by the Lord Ordinary, it could be no law for the Courts of England or Scotland unless a similar practice was also found to prevail there. But I think it unnecessary to examine in detail the American authorities mentioned by the Lord Ordinary, because your Lordships need go no further than the opinion of Mr Justice Story be satisfied that no such uniform practice does in fact prevail in the Courts of the United States.
Mr Justice Story had occasion to consider some questions connected with this subject judicially in 1818 in the case of Harvey v. Richards (Mason's Reports, p. 381), and his judgment, which well repays perusal, is in accordance with the conclusions stated by him in the 9th chapter of his work on Equity Jurisprudence. In the earlier sections of that chapter he recognises the doctrine of trusts as a generally sufficient foundation for the administration of assets by courts of equity. In sec. 588 he deals with the question how far the courts of a state granting an ancillary administration may properly exercise jurisdiction as to the distribution of the residue of the estate in the administrator's hands after payment of all debts, &c. In sec. 589 he states the general result which he collects from the authorities-courts of equity of the country where the ancillary administration is granted (and other courts exercising a like jurisdiction in cases of administration) are not incompetent to act upon such matter, and to decree a final distribution of the assets to and among the various claimants having equities or rights in the fund, whatever may be their domicile, whether it be that of the testator or intestate, or be in some other foreign country. The question whether the Court entertaining the suit for such a purpose ought to decree such a distribution or to remit the property to the forum of the domicile of the party deceased, is treated not so much as a matter of jurisdiction as of judicial discretion dependent upon the particular circumstances of each case. There can be, and ought to be, no universal rule on the subject. But every nation is bound to lend the aid of its own judicial tribunals for the purpose of enforcing the rights of all persons having a title to the fund, when such interference will not be productive of injustice or inconvenience or conflicting equities which may call upon such tribunals for abstinence in “the exercise of their jurisdiction.'
It may be observed in passing that this eminent jurist, in Harvey v. Richards (1 Mason, 415, 416), commented upon the words “principal” and "ancillary' when used with respect to administrations as having no magic in them, and as not necessarily governed by domicile in their prac. tical application. “I am yet to learn,” he said, "what possible difference it can make in the rights of parties before the Court whether the administration be a principal or an ancillary administration. They must stand upon the authority of the law to administer or deny relief under all the circumstances of the case, and not upon a mere technical distinction of very recent ori. gin.” If the views of Mr Justice Story ought to be regarded, they seem to me to be consonant with the Scottish authorities and with the English laws also, so far at all events as the question of competency is concerned.
The conclusion at which I have arrived on this part of the case is that the declaratory part of the principal interlocutor of the Inner House cannot be supported, and ought to be reversed.
But the question whether your Lordships ought also to reverse that part of the interlocutor which sequesters the estate, appoints a judicial factor, and suspends till further orders the action of the appellants as trustees, appears to me to depend upon other considerations. As to this it cannot be maintained that the Court of Session