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Court of Session would have been bound by its tions of great public interest." I agree in this, own decisions at once to dismiss any such action and will add for myself that the questions thus brought before them by a beneficiary, whether raised require the calmest judicial consideration, in minority or of full age, and to leave the pur- divested of even the least shade of bias or suscepsuer to seek his remedy in the Courts of England tibility. If my mind could possibly be affected as the proper forum of the trust administration. by any inclination it would be in favour of the It may be said that the determination of what respondents. shall constitute a forum conveniens or non con- The main question before your Lordships' veniens is more or less a matter of discretion, but House is, Whether so much of the interlocutor the principles upon which it has hitherto been of the Inner House as “finds and declares and held in cases of this kind that the Court of Ses- decrees in terms of the declaratory conclusions of sion was forum inconveniens are in my opinion the summons" is well founded in law? Those as binding upon its Judges as any rules of posi- declaratory conclusions may be said to be the first tive law.

three, which assert in substance and effect that by I farther desire to say that in the English ap- virtue of “the trust-disposition” and according to peal of Ewing v. Orr Ewing in this House (9 Ap- the law of Scotland the trustees are bound to peal Cases 34) I did not think I was at liberty to carry out the purposes of the trust in Scotland, consider the question arising for decision as an and under the authority and subject to the jurisopen question. It appeared to me that to diction of the Scottish Courts alone, and are not disregard to any extent the long and consistent bound to render any accounts of the estate to the series of authorities by which the order appealed High Court of Justice in England “or to any other from was supported, would in effect have been to foreign tribunal furth of Scotland." I interpret trench upon the functions of the Legislature. I foreign" and "furth" as meaning "outside the participate very strongly in the doubt expressed limits of Scotland," and not intended to convey that by my noble and learned friend Lord Blackburn England is as to Scotland a foreign country just

- whether it is always for the benefit of all as China or Japan would be, or her tribunals alien concerned to make such an order”-but at the tribunals. same time I agree with his Lordship that it had My Lords, I am clearly of opinion that in de“been too long the course of Chancery to treat cerning these declaratory conclusions the judgthis as a right which the plaintiff has ex debilo ment of the Inner House was erroneous. No rule justitiæ.” In my opinion the true principle upon of Scottish law justifies the decerniture of those which jurisdiction in such cases should depend conclusions. is, that every person beneficially interested ought It seems to me that the interlocutor appealed to seek his remedy in that Court in which it is from is so far in conflict with the decision of this most for the benefit of the trust and of all con- House in the former appeal in the English action. cerned that the litigation should be carried on, Your Lordships were not then“administeringalaw and it does appear to me that our decision in different from or antagonistic to the principles of Ewing v. Orr Ewing (9 Appeal Cases 34) may the law of Scotland,” or giving effect merely to occasionally lead to a violation of that principle. the rules and precedents of the English Court of

As I have already indicated, I do not think the Chancery. Your Lordships in that case deterdeclaratory conclusions of tbe summons in this mined a question then arising as to the jurisdiccase can be sustained-on the other hand, I am tion of the latter Court in the sense of its inheof opinion that the jurisdiction of the Court of rent legal authority and the extent of its power, Session to sequestrate the trust and appoint a If the question of the jurisdiction of the Court judical factor cannot be held to have been ousted of Chancery in the English cause was now open by the proceedings in Chancery, and although I to us on this appeal-if it could be called in quesdid at one time entertain doubts upon the sub- tion-I could have no hesitation in determining in ject, I am of opinion that the appointment ought favour of that jurisdiction to the full extent to to be sustained. I am also of opinion that the which it had been exercised. The Court of First Division bad power to grant, and rightly Chancery was there acting in personam at suit of granted, the limited interdict contained in their a competent plaintiff against trustees resident interlocutor of 29th February 1884, with the ex. within the locality in which its authority was to ception of that part of it which relates to account- be exercised, and their co-trustees, who on notice ing, that interdict being in other respects in com- intervened and submitted to the jurisdiction. mon form, and its sole object and effect being to My Lords, in coming to this conclusion I rest enforce the sequestration and secure the im- nothing on the circumstance of a portion of the mediate transfer of the whole trust estate then in personalty having been at the time of the Scotland to their own judicial officer.

testator's death locally situate in England, or of

there being English administration to that part LORD FITZGERALD—My Lords, the lucid and of the estate, or of the authority of the trustees dispassionate judgment of the noble and learned to invest the trust funds, if they should think fit, Earl meets with my entire concurrence. That in English securities, and, on the other hand, it judgment and the judgments of the noble Lords seems to me that the nationality of the trustees who have preceded me have so exhausted the facts does not affect the question. It is worthy of and the authorities that I can add but little, and observation that the Scottish conveyancer who will endeavour to avoid repetition of that which prepared the trust-disposition lays no stress on has been already said so well.

residence as a qualification of the trustees, save The Lord President in expressing his judicial in one instance, where it is provided “that the opinion, which is the foundation of the interlocu- major number of them accepting and surviving tor of the Inner House, says that “the action is and resident in Great Britain from time to time brought under very exceptional circumstances, being a quorum, as trustees and trustee for the and the conclusions of the summons raise ques- ends, uses, and purposes after mentioned (the



v Orr Ewing's

24, 1885

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 direot 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 parchasing 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 discretion.

My Lords, 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

v Orr Ewing's Trs

s Trs] July 24, 1885.

or applicable. On the question of comparative of the Lord Ordinary, and I may pass from this expense I can form no opinion. It may be that part of the case by observing that in my opinion “the Chancery Division,” viewed from a distance, no question of international law arises. There and through an exaggerated medium, carries with is no real conflict of jurisdiction between the two it no small degree of apprehension both as to the judicatories. It presents a case of concurrent duration and the costs of its procedure; but, on jurisdiction and no more. Though there is no the other hand, we have no information as to the conflict of jurisdiction there may arise what fees or commission or percentage of the judicial would more properly be called a collision befactor, or whether payable on the whole fund or tween the practice of the Courts of separate on its income only, or on both, or of the probable divisions of the same United Kingdom, wbich expenses or costs of the several actions or pro- would properly be settled by the judicatories of ceedings which may from time to time be neces- two countries acting in ancillary courtesy to each sary in carrying into effect trusts which must other, or by this House as the supreme and final extend over a long period of time before the day Court of Appeal, or if it cannot be effected otherof final exoneration shall have been reached. wise, by legislation of the Imperial Parliament.

My Lords, I concur in the opinions expressed My Lords, there remains only for me to con. that the Courts of Scotland are as entirely inde- sider whether the interlocutor of the Inner House pendent of the High Court of Justice in England can be maintained so far as it sequestrates the as the latter Court is independent of the Courts estate and pronounces an interdict against the in Scotland. The judicatories of the two countries trustees. There is no question as to the jurisare as independent of each other as they were diction of the Court to decree & sequestration, before the Act of Union, and there is nothing in but as to whether the authority to do so ought that Act, or in the Imperial statutes since, to to have been exercised. On this question I militate against that independence, although entertain serious doubt. When a sequestration there has been some wholesome legislation which is decreed, it at least implies that the fund is in tends to make each to be ancillary to the other danger. No danger existed, and the interdicted in the due administration of justice in cases trustees had committed no default, and, on the coming within their proper jurisdictions. I do contrary, have been active and straightforward not find it necessary to go further, or to adopt in the performance of their duties. the opinion of Lord Campbell that the two I understood, however, in the course of the countries are for the purposes of judicial juris- argument that the appellant's counsel did not diction “to be considered as independent foreign question the authority of the Court of Session to countries unconnected with each other,” or “as decree a sequestration in the due exercise of its if they were the judicatories of two foreign judicial discretion, and on that it seemed to me

that it only remained to settle the terms of capituThat proposition seems to me unnecessary for lation. the decision of the present case, and was not As to the appointment of a judicial factor, necessary for the decision in the Marquis of which seems to be a necessary sequence of the Bute's case, and is so extensive as probably to sequestration, I shall only say that I doubt involve consequences not now quite foreseen. whether his appointment, liable as it may be to

Thus, for instance, the Lord Ordinary in his abuse, is an equivalent in protection to the fund very learned judgment, proceeding very much on being brought into Court and paid out to the this basis, says—“ It is perfectly clear that if the legatees on the orders of the Court. practice of the Court of Chancery in England is My Lords, on the whole I concur in the order inconsistent with international law, no court of proposed for your adoption by the noble and a foreign country is bound to respect it.” And learned Earl. again in commenting on the 19th article of the Treaty of Union he is represented to have added

Mr LEMON-May I be allowed to ask whether -"Scotland has a law different from that of your Lordships give to the respondents their costs England, and quoad that law it is an independ

out of the estate, or whether you only give to the ent State, entitled to demand from England ad.

appellants the "costs of the appeal.' I underherence to the rules of international law which stood your Lordships to say “the costs of the determines the rights of natives of foreign states

appeal." which may be made the subject of action in her EARL OF SELBORNE–My Lords, I think that it Courts.” And again—“If this case be appealed would be proper, if your Lordships think the same, to the House of Lords it will have to determine,

that the costs of all parties should come out of not any rule as to Chancery practice, but a ques- the estate. tion as to international law-that is, quoad hoc, the law of Scotland. The House of Lords can

Mr FELLOWS-Will your Lordsbips direct the not, or at all events ought not to consider, in re- judicial factor to pay those costs as he has the

assets in hand ? ference to the question brought before them by an appeal from this judgment, any other point than EARL OF SELBORNE—Yes. Our order should be this, Whether, according to the law of nations,

that the judicial factor be directed to pay those this rule of the Chancery Court of England must

costs out of the estate. be respected by a foreign court when the people of that foreign country in recognising it would So much of the interlocutor of the Inner be thereby subjected to grievous expense and House, bearing date the 29th of February 1884, many inconveniences, and when, moreover, the as finds, declares, and decerns in terms of the practice itself is contrary to all sound principles declaratory conclusions of the summons, and of international law."

also so much thereof as interdicts, prohibits, and My Lords, I think it to be necessary to follow discharges the appellants from accounting for in these particulars or to criticise the opinion the trust-estate, or any part thereof, to any per


v Orr Ewing's

24, 1885. son or persons other than the judicial factor, re- petent to the said infant plaintiff, or anyone on versed.

his behalf, if he were a party on the record. Declaration (the respondents by their counsel

In other respects, subject to the aforesaid deconsenting thereto)-That Malcolm Hart Orr

claration, interlocutors of the Inner House under Ewing, the infant plaintiff in the English suit by

appeal, affirmed : Cause remitted to the Court George Wellesley Hope, his present next friend

below: The costs of all parties to the appeal to in that suit, or by such other person as may from

be paid out of the testatos 8 estate, and to be paid time to time be admitted by the High Court of

by the judicial factor. Justice in England as the next friend of the said infant plaintiff, is to have notice of and to be at Counsel for Pursuer (Respondent)—Sir F. liberty to attend the taking of all accounts of the Herschell, Q.C.-J. P. B. Robertson-Lemon. judicial factor from time to time in this action, Agent-D. E. Chandler for F. J. Martin, W.8. and all proceedings thereon, and to make all such

Counsel for Defenders (Appellants)-Rigby, applications to the Court of Session on all matters

Q.C.-Romer Q.O. - Fellowes — W. 6. Smith, relative to the sequestrated trust-estate, or the trust-funds arising therefrom, for any purpose,

Agents — Lattey & Hart for J. A. Campbell & including claims for expenses, as might be com

Lamond, C.S.


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