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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Swanson v Manson  ScotCS CSIH_6 (16 January 1907)
Cite as:  ScotCS CSIH_6, 1907 SC 426, (1907) 14 SLT 737
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16 January 1907
In one sense, of course, the pursuer's title must be judged of as at the time he raises the action, and he cannot get a new title. You cannot introduce new pursuers, and you cannot introduce a new title for an old pursuer. But at the same time, where the objection to the pursuer's title is only tabled in the defence, I am bound to say that if it had been merely a question of the time—although I am not perhaps certain on the subject—I should have thought that, with the powers of amendment now existing, it would have been allowable to open up the record and to allow the pursuer to put in this new statement, which really does not give him a fresh title, but is really an answer to an answer which is made to him in the defences.
But a much more formidable, and what seems to me an unanswerable, answer to the pursuer's case, arises upon a matter which does not seem to have been argued before the Lord Ordinary, so far as one can judge from his note; and it is this, that the pursuer does not allege either that he is in a position to reduce the first settlement upon any grounds analogous to those upon which he seeks to reduce the second, or that he is in a position to allege that the persons who have an interest to maintain the first settlement are prepared to allow that settlement to be reduced and to go by the board. On the contrary, what he alleges is that those parties propose to take under the first settlement, and then to make a distribution of the property with the pursuer.
Now, I am absolutely unable to see how that helps the pursuer one bit in the action which he now raises. The pursuer's only right to raise an action at all is because he has a title as next of kin. A good title as next of kin to reduce a settlement is a title which is founded on interest. If it were not the law of Scotland that in default of a settlement the next of kin took the property, he would not have a title to raise the action. The law of Scotland might be different. It might not give the right of succession to the next of kin, but might give it to someone else; and I take it that the right to reduce the settlement would then leave the next of kin and would go to those other persons. Now, the moment that another settlement is tabled which cuts out the next of kin, it seems to me perfectly clear that the title of the next of kin is gone because their interest is gone—their interest, that is to say, as next of kin; and it seems to me confusing the matter altogether to say, as the pursuer's counsel now says, that he has got an interest in the sense that he has bargained for getting something of the estate from the people who are really entitled to it—namely, the beneficiaries under the first settlement. According to that, anybody might have a right of reducing a settlement if they were allowed to simply bargain with somebody who had right in a former settlement, and then say—“In order to make this right of mine available I propose to reduce the later settlement.” I think the whole matter is rested upon confusion. It seems to me the present pursuer's title and interest are gone unless he is in a position to say he is as able to get rid of the first settlement as he is of the second. On the contrary, he does not say that at all, and therefore, I am of opinion that the action ought to be dismissed. Parties are not agreed on the other side as to whether they really have here got the whole of the next of kin; and before we could allow an issue, as was done by the Lord Ordinary, that disputed matter of fact would have to be cleared up. But I do not think that is necessary, because the agreement says the first deed, so far from being reduced, still stands; and if the first deed stands, it seems to me that the title of the pursuer is gone.
LORD KINNEAR was absent.
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