remedy by a suit in the proper forum, or that the trustee, called as a defender, expresses his willingness to institute, and accordingly does institute, proceedings, proceeding in that forum by means of which the pursuer can have the redress which he claims. There were no proceedings depending in the foreign forum when action was raised before the Court of Session in Campbell v. Rucker (Hume Dec. 258), Macmaster v. Macmaster (11 Shaw, 685), or in Macmaster v. Stewart (12 Shaw, 731). In Peters v. Martin (4 Shaw, 138) it was alleged by the defender that an effective proceeding at his instance was depending before the Court of Chancery, but after an opportunity was allowed him of substantiating his allegation their Lordships of the Second Division were satisfied that the statement was untrue, and they permitted the action to proceed on the ground that the defender refused to submit himself to the jurisdiction of the English Court.

There are two decisions which have sometimes been cited as showing that the Scottish Courts have gone further in sustaining their jurisdiction over English executors than the principles which I have stated would justify. I refer to Morrison v. Ker (Morison's Dict. 4601) and Scott v. Elliott (Morison's Dict. 4845). It was explained, however, that in neither of these cases was it sought to call an administrator to account for his intromissions with the trust or executory estate, and that explanation is in my opinion

correct.

In Morrison v. Ker (Morison's Dict. 4601) the deceased, Alexander Ker, who was resident in England, left a will by which he bequeathed the liferent of his estate, which consisted of personalty, to his sister Janet, and the fee on her death to his next lawful heir or heiress of blood." The liferentrix, who was a domiciled Scotswoman, took out letters of administration in the Prerogative Court of Canterbury, in virtue of which she uplifted the estate and transferred it to Scotland. Before her death she delivered the whole estate to James Ker, a domiciled Scotsman, believing that on her death he was entitled to it as next lawful heir of blood of the deceased. After her death an action was brought against James Ker by several persons resident in Scotland, who claimed a share of the estate as being along with the defender the next-of-kin of the deceased. It was pleaded for the defender that as an English executor he was only liable to answer in the Courts of England, and that the action ought to be dismissed, but the Court repelled the plea. The defender was not in point of fact an executor, and the title by which he held the deceased's estate was not derived from any English Court. He was in reality defending his own right as sole beneficiary against pursuers who alleged that they were also beneficiaries and that payment had been made to him under error by the executor then deceased. Then in Scott v. Elliott (Morison's Dict. 4845) the defender Maria Elliott, who had always lived in Scotland, administered to the personal estate of her father in England, where he was resident at the time of his death, not under any settlement, but as the hæres in mobilibus of the deceased. The defender's mother had obtained a decree of the commissaries divorcing her from the deceased and decerning him to pay to her an annual sum for the aliment of the defender, and the action was brought against the defender

EwiJuly 24, 1885

Ewing v Orr Ewing's

as her father's representative for payment of arrears due under that decree. The defender did not allege that the succession which she took from her father was insufficient for payment of his debts, but she contended that "from his long residence in England every claim against him, and consequently against his representatives, ought to be decided by its laws." That contention was plainly untenable as a plea ousting the jurisdiction of the Court. The claim made was for a debt due under a Scottish decree, and it involved no question either as to the due administration of the executory estate of the deceased, or as to the rights of parties having beneficial interests.

If I have rightly stated the principles upon which the Courts of Scotland exercise or decline jurisdiction over foreign trustees, it appears to me to be a necessary consequence that the Courts below have erred in giving decree in terms of the declaratory conclusions of the summons, because these conclusions affirm the absolute incompetency of the High Court of Chancery to entertain the suit which was brought before it. There is to my mind a broad distinction between a radical defect of jurisdiction, and jurisdiction to entertain, stay, or dismiss a suit according to the discretion of the Court. The latter is the kind of jurisdiction exercised by the Scottish Courts in the case of foreign trustees, and they are, in my opinion, bound er comitate to allow a similar jurisdiction to foreign courts in the case of Scottish trustees. How far the Courts of Scotland are entitled or bound to criticise and control the discretion of a foreign court in sustaining its own jurisdiction when that discretion has been honestly exercised it is not necessary for the purposes of this appeal to consider, and it is not in my opinion expedient to determine such nice questions until they actually arise for decision. With reference to the English administration suit at the instance of the parties who are now prosecuting this appeal, I desire to make these observations. It is true that in the law of Scotland there is no form of process which is known by the name of an administration suit, and also that the Scottish Courts do not undertake to superintend generally the administration of trusts, and do not interfere with the management of the trustees appointed by a testator unless a relevant case is stated which calls for their interference. But the Courts are at all times ready to entertain a complaint at the instance of a beneficiary, if made ir proper form, to the effect that the trustees a mismanaging or dilapidating the trust-estate, or that they have failed or unduly delayed to pay or to set aside and secure the provisions made in his favour by the settlement of the truster, and to give him such remedy as may seem just. And I entertain no doubt that the allegations made by the compearing appellants in their Chancery proceedings would have been relevant to sustain an action of count and reckoning in the Court of Session at their instance against the nominal appellants with appropriate conclusions for having their share of the late Mr Orr Ewing's estate either paid to them or set apart and secured for future payment. And it does not appear to me to admit of any doubt that if the circumstances of this case had been reversed, if the trust of the late Mr Orr Ewing had been English in the same sense in which I have described it as Scottish, the

Court of Session would have been bound by its own decisions at once to dismiss any such action brought before them by a beneficiary, whether in minority or of full age, and to leave the pursuer to seek his remedy in the Courts of England as the proper forum of the trust administration. It may be said that the determination of what shall constitute a forum conveniens or non conveniens is more or less a matter of discretion, but the principles upon which it has hitherto been held in cases of this kind that the Court of Session was forum inconveniens are in my opinion as binding upon its Judges as any rules of positive law.

I further desire to say that in the English appeal of Ewing v. Orr Ewing in this House (9 Appeal Cases 34) I did not think I was at liberty to consider the question arising for decision as an open question. It appeared to me that to disregard to any extent the long and consistent series of authorities by which the order appealed from was supported, would in effect have been to trench upon the functions of the Legislature. I participate very strongly in the doubt expressed by my noble and learned friend Lord Blackburn -"whether it is always for the benefit of all concerned to make such an order "—but at the same time I agree with his Lordship that it had "been too long the course of Chancery to treat this as a right which the plaintiff has ex debito justitia." In my opinion the true principle upon which jurisdiction in such cases should depend is, that every person beneficially interested ought to seek his remedy in that Court in which it is most for the benefit of the trust and of all concerned that the litigation should be carried on, and it does appear to me that our decision in Ewing v. Orr Ewing (9 Appeal Cases 34) may occasionally lead to a violation of that principle.

As I have already indicated, I do not think the declaratory conclusions of the summons in this case can be sustained-on the other hand, I am of opinion that the jurisdiction of the Court of Session to sequestrate the trust and appoint a judical factor cannot be held to have been ousted by the proceedings in Chancery, and although I did at one time entertain doubts upon the subject, I am of opinion that the appointment ought to be sustained. I am also of opinion that the First Division had power to grant, and rightly granted, the limited interdict contained in their interlocutor of 29th February 1884, with the exception of that part of it which relates to accounting, that interdict being in other respects in common form, and its sole object and effect being to enforce the sequestration and secure the immediate transfer of the whole trust estate then in Scotland to their own judicial officer.

That

LORD FITZGERALD-My Lords, the lucid and dispassionate judgment of the noble and learned Earl meets with my entire concurrence. judgment and the judgments of the noble Lords who have preceded me have so exhausted the facts and the authorities that I can add but little, and will endeavour to avoid repetition of that which has been already said so well.

The Lord President in expressing his judicial opinion, which is the foundation of the interlocutor of the Inner House, says that "the action is brought under very exceptional circumstances, and the conclusions of the summons raise ques

VOL. XXII.

tions of great public interest.' I agree in this, and will add for myself that the questions thus raised require the calmest judicial consideration, divested of even the least shade of bias or susceptibility. If my mind could possibly be affected by any inclination it would be in favour of the respondents.

The main question before your Lordships' House is, Whether so much of the interlocutor of the Inner House as "finds and declares and decrees in terms of the declaratory conclusions of the summons " is well founded in law? Those declaratory conclusions may be said to be the first three, which assert in substance and effect that by virtue of "the trust-disposition" and according to the law of Scotland the trustees are bound to carry out the purposes of the trust in Scotland, and under the authority and subject to the jurisdiction of the Scottish Courts alone, and are not bound to render any accounts of the estate to the High Court of Justice in England "or to any other foreign tribunal furth of Scotland." I interpret "foreign" and "furth" as meaning "outside the limits of Scotland," and not intended to convey that England is as to Scotland a foreign country just as China or Japan would be, or her tribunals alien tribunals.

My Lords, I am clearly of opinion that in decerning these declaratory conclusions the judgment of the Inner House was erroneous. No rule of Scottish law justifies the decerniture of those conclusions.

It seems to me that the interlocutor appealed from is so far in conflict with the decision of this House in the former appeal in the English action. Your Lordships were not then "administering alaw different from or antagonistic to the principles of the law of Scotland," or giving effect merely to the rules and precedents of the English Court of Chancery. Your Lordships in that case determined a question then arising as to the jurisdiction of the latter Court in the sense of its inherent legal authority and the extent of its power.

If the question of the jurisdiction of the Court of Chancery in the English cause was now open to us on this appeal-if it could be called in question-I could have no hesitation in determining in favour of that jurisdiction to the full extent to which it had been exercised. The Court of Chancery was there acting in personam at suit of a competent plaintiff against trustees resident within the locality in which its authority was to be exercised, and their co-trustees, who on notice intervened and submitted to the jurisdiction.

My Lords, in coming to this conclusion I rest nothing on the circumstance of a portion of the personalty having been at the time of the testator's death locally situate in England, or of there being English administration to that part of the estate, or of the authority of the trustees to invest the trust funds, if they should think fit, in English securities, and, on the other hand, it seems to me that the nationality of the trustees does not affect the question. It is worthy of observation that the Scottish conveyancer who prepared the trust-disposition lays no stress on residence as a qualification of the trustees, save in one instance, where it is provided "that the major number of them accepting and surviving and resident in Great Britain from time to time being a quorum, as trustees and trustee for the ends, uses, and purposes after mentioned (the

NO. LIX.

said trustees and their foresaids and their quorum being hereafter referred to as my trustees)." The truster then, after a gift of his whole estate, heritable and moveable, to his trustees, appoints them also his executors, with a direction for the payment of his debts, sick-bed and funeral expenses, and thereafter through the numerous directions of the trust-disposition the appellation "'executors "" is dropped and each further provision commences thus-"I direct my trustees." The line of distinction between their acts as executors and their duties as trustees is thus sharply defined.

It is also observable, if it be a matter of importance, that the truster does not in the trust-disposition give any express direction that the trust should be carried out in Scotland, nor is such his express desire, although I think he may have so intended, for reasons which I will presently point out. The truster declares his intention of purchasing a landed estate, and that if he dies possessed of it his wife shall have certain rights in the mansion-house, gardens, &c.; but he does not indicate in any way that the estate is to be in Scotland, and it is obvious that, according to the express trusts of the deed, the whole or a large portion of the trust fund might have been and still may be invested in land or other securities in any part of the United Kingdom at the discretion of the trustees. But, my Lords, although the truster's express declaration (if there had been such declaration) that the trust-disposition should be carried out in Scotland, and under the supervision and direction of the Scottish Courts, could not affect the question of jurisdiction, yet it may form an important element to guide the exercise of judicial dis

cretion.

My Lords, it seems to me that though the truster has not so expressed it, yet he did expect that the trusts of his disposition would be carried out in Scotland, and with the supervision and aid, if necessary, of the Scottish Courts acting in the administration of Scottish law and according to their well-known and established practices. The greater part, say five-sixths, of the trust-estate consisted of the truster's share and interest in the firm of John Orr Ewing & Co., in which he was a partner. The truster gives special directions as to how his share of the capital of that firm is to be withdrawn. The second codicil is applicable to a portion of the same capital to the extent of £100,000, and the assumption of two of his nephews, being also two of the residuary legatees, as partners of that firm, and it seems reasonable to assume that the truster had in view that the trusts of this portion of the trust fund should be carried into operation in Scotland by the trustees he had selected and according to Scottish practice extra curiam. The whole instrument too, it is obvious, is one couched all throughout in the language of Scottish conveyancing, and must be interpreted according to Scottish law. If difficult questions should arise as to the rights of the legatees (and it would be too sanguine to anticipate that such difficulties may not arise), such questions must be decided according to the law of Scotland.

There is a passage of the trust-disposition which somewhat illustrates the view I have expressed, and is as follows:-"And I do hereby nominate and appoint my trustees to be

tutors and curators, or tutor and curator, to all persons taking benefit under these presents who may be in pupillarity or minority, and who may not have any tutors or curators quoad such benefit during their respective pupillarities and minorities, and without prejudice to the powers, privileges, and immunities conferred upon trustees by any Act of Parliament applicable to Scotland, or to which trustees may be entitled at common law, all of which, in so far as not inconsistent herewith, are hereby conferred upon the said trustees, executors, tutors, and curators, I hereby authorise my trustees, if they think fit, to wind up or carry on, or concur in winding up or carrying on, any business or adventure in which I may be engaged at my death, either by myself or in company with others, and to make such arrangements and settlements in connection therewith as they may think proper; to allow any share or interest which I may have in any business in which I may be concerned along with others, to remain in the hands of my surviving partners or partner for such period and on such terms, with or without security, as they may in their discretion deem advisable, and that notwithstanding the terms of any contract of a copartnership which may then be existing."

It will be observed that the truster here avails himself of the practice under the law of Scotland which enables the donor to appoint tutors and curators of his gift during the pupillarity and minority of the beneficiary, at the same time preserving for them or conferring on them the protection of "any Act of Parliament applicable to Scotland," and he also authorises his trustees to carry on any business or adventure in which he may be engaged. He does not appear to have been engaged in any business save in Scotland.

My Lords, I cannot help regretting that the certificate of the Chief-Clerk in the English action was disturbed. He certified on the 18th February 1881-"This action has not been properly instituted, and it is not fit and proper or for the benefit of the infant plaintiff that the same should be further prosecuted." That certificate was discharged by the Master of the Rolls on the ground that he considered that the action was for the benefit of the infant, but if it had been open to him as a matter of judicial discretion, it would seem to me to have been more expedient to have let that action stand dismissed, although it would still have been open to the father of the infant, if he thought fit, or to the mother acting through a next friend, to have instituted another and properly constituted suit for the protection of the interests of the infant, but subject to the consideration of forum non conveniens.

My Lords, it seems to me to be undesirable to canvass the merits or defects of the diverging lines of procedure in the respective Courts of the two countries, or to consider whether either is "fortunate," the one in the possession of the privilege of an "administration suit," or the other in the absence of that blessing, or whether the statement of the Lord President has not disclosed an infirmity in Scottish practice in not providing any adequate means for the protection of beneficiaries such as the residuary legatees in the present case. An action of multiple or double poinding would not seem to me to be sufficient

or applicable. On the question of comparative expense I can form no opinion. It may be that "the Chancery Division," viewed from a distance, and through an exaggerated medium, carries with it no small degree of apprehension both as to the duration and the costs of its procedure; but, on the other hand, we have no information as to the fees or commission or percentage of the judicial factor, or whether payable on the whole fund or on its income only, or on both, or of the probable expenses or costs of the several actions or proceedings which may from time to time be necessary in carrying into effect trusts which must extend over a long period of time before the day of final exoneration shall have been reached.

My Lords, I concur in the opinions expressed that the Courts of Scotland are as entirely independent of the High Court of Justice in England as the latter Court is independent of the Courts in Scotland. The judicatories of the two countries are as independent of each other as they were before the Act of Union, and there is nothing in that Act, or in the Imperial statutes since, to militate against that independence, although there has been some wholesome legislation which tends to make each to be ancillary to the other in the due administration of justice in cases coming within their proper jurisdictions. I do not find it necessary to go further, or to adopt the opinion of Lord Campbell that the two countries are for the purposes of judicial jurisdiction "to be considered as independent foreign countries unconnected with each other," or "as if they were the judicatories of two foreign states."

That proposition seems to me unnecessary for the decision of the present case, and was not necessary for the decision in the Marquis of Bute's case, and is so extensive as probably to involve consequences not now quite foreseen.

Thus, for instance, the Lord Ordinary in his very learned judgment, proceeding very much on this basis, says "It is perfectly clear that if the practice of the Court of Chancery in England is inconsistent with international law, no court of a foreign country is bound to respect it." And again in commenting on the 19th article of the Treaty of Union he is represented to have added -"Scotland has a law different from that of England, and quoad that law it is an independent State, entitled to demand from England adherence to the rules of international law which determines the rights of natives of foreign states which may be made the subject of action in her Courts." And again-"If this case be appealed to the House of Lords it will have to determine, not any rule as to Chancery practice, but a question as to international law-that is, quoad hoc, the law of Scotland. The House of Lords cannot, or at all events ought not to consider, in reference to the question brought before them by an appeal from this judgment, any other point than this, Whether, according to the law of nations, this rule of the Chancery Court of England must be respected by a foreign court when the people of that foreign country in recognising it would be thereby subjected to grievous expense and many inconveniences, and when, moreover, the practice itself is contrary to all sound principles of international law."

My Lords, I think it to be necessary to follow in these particulars or to criticise the opinion

of the Lord Ordinary, and I may pass from this part of the case by observing that in my opinion no question of international law arises. There is no real conflict of jurisdiction between the two judicatories. It presents a case of concurrent jurisdiction and no more. Though there is no conflict of jurisdiction there may arise what would more properly be called a collision between the practice of the Courts of separate divisions of the same United Kingdom, which would properly be settled by the judicatories of two countries acting in ancillary courtesy to each other, or by this House as the supreme and final Court of Appeal, or if it cannot be effected otherwise, by legislation of the Imperial Parliament.

My Lords, there remains only for me to consider whether the interlocutor of the Inner House can be maintained so far as it sequestrates the estate and pronounces an interdict against the trustees. There is no question as to the jurisdiction of the Court to decree a sequestration, but as to whether the authority to do so ought to have been exercised. On this question I entertain serious doubt. When a sequestration is decreed, it at least implies that the fund is in danger. No danger existed, and the interdicted trustees had committed no default, and, on the contrary, have been active and straightforward in the performance of their duties.

I understood, however, in the course of the argument that the appellant's counsel did not question the authority of the Court of Session to decree a sequestration in the due exercise of its judicial discretion, and on that it seemed to me that it only remained to settle the terms of capitulation.

As to the appointment of a judicial factor, which seems to be a necessary sequence of the sequestration, I shall only say that I doubt whether his appointment, liable as it may be to abuse, is an equivalent in protection to the fund being brought into Court and paid out to the legatees on the orders of the Court.

My Lords, on the whole I concur in the order proposed for your adoption by the noble and learned Earl.

Mr LEMON-May I be allowed to ask whether your Lordships give to the respondents their costs out of the estate, or whether you only give to the appellants the "costs of the appeal." I understood your Lordships to say "the costs of the appeal.'

EARL OF SELBORNE-My Lords, I think that it would be proper, if your Lordships think the same, that the costs of all parties should come out of the estate.

Mr FELLOWS-Will your Lordships direct the judicial factor to pay those costs as he has the assets in hand?

EARL OF SELBORNE-Yes. Our order should be that the judicial factor be directed to pay those costs out of the estate.

So much of the interlocutor of the Inner House, bearing date the 29th of February 1884, as finds, declares, and decerns in terms of the declaratory conclusions of the summons, and also so much thereof as interdicts, prohibits, and discharges the appellants from accounting for the trust-estate, or any part thereof, to any per

son or persons other than the judicial factor, reversed.

Declaration (the respondents by their counsel consenting thereto)-That Malcolm Hart Orr Ewing, the infant plaintiff in the English suit by George Wellesley Hope, his present next friend in that suit, or by such other person as may from time to time be admitted by the High Court of Justice in England as the next friend of the said infant plaintiff, is to have notice of and to be at liberty to attend the taking of all accounts of the judicial factor from time to time in this action, and all proceedings thereon, and to make all such applications to the Court of Session on all matters relative to the sequestrated trust-estate, or the trust-funds arising therefrom, for any purpose, including claims for expenses, as might be com

petent to the said infant plaintiff, or anyone on his behalf, if he were a party on the record.

In other respects, subject to the aforesaid declaration, interlocutors of the Inner House under appeal, affirmed: Cause remitted to the Court below: The costs of all parties to the appeal to be paid out of the testator's estate, and to be paid by the judicial factor.

Counsel for Pursuer (Respondent)-Sir F. Herschell, Q.C.-J. P. B. Robertson-Lemon. Agent-D. E. Chandler for F. J. Martin, W.S.

Counsel for Defenders (Appellants)-Rigby, Q.C.-Romer Q.C.-Fellowes- W. C. Smith. Agents Lattey & Hart for J. A. Campbell & Lamond, C.S.