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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Graham v. Graham's Trustees [1901] ScotLR 39_3 (15 October 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0003.html Cite as: [1901] SLR 39_3, [1901] ScotLR 39_3 |
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Page: 3↓
In an appeal from a Sheriff Court the defender moved that the pursuer and appellant, who was a soldier absent on service in China, should be ordained to sist a mandatary. The action was one of accounting, directed by the pursuer against his father's trustees. From a statement furnished by the trustees' agent to the pursuer, and produced in this action, it appeared that the pursuer would be entitled to a certain amount as legitim. Motion to sist mandatary refused.
Peter Macpherson Graham, gunner in the Royal Artillery, brought an action in the Sheriff Court at Glasgow against Alexander Lang and others, trustees acting under the trust-disposition and settlement of his father, the late Alexander Graham, wine and spirit merchant in Glasgow. The conclusions of the action were for an account of the trustees' intromissions, and for payment to the pursuer of the sum of £2000, or such other sum as should be found to be due to him as legitim.
In defence the trustees maintained that the goodwills of the licensed premises in which the deceased had carried on business were heritable and not moveable estate, and that unless these goodwills were treated as moveable there was no free moveable estate available for payment of legitim.
From a statement of the legitim fund on the late Alexander Graham's estates, furnished to the pursuer by the agent of the trustees, and produced in this action, it appeared that the amount due to the pursuer as legitim was £70, 9s. 9d. With reference to this statement the trustees now stated that it was not correct, in respect that it included the value of the goodwills.
On 6th July 1901 the Sheriff-Substitute ( Boyd) pronounced an interlocutor whereby he found that the goodwills could not be regarded as moveable; therefore so far sustained the defences and assoilzied the defenders; and quoad ultra allowed a proof.
The pursuer appealed to the Court of Session.
On the case being called in the Single Bills, counsel for the defenders stated that the pursuer was absent in China on active service, and moved that he be ordained to sist a mandatary— Dessau v. Daish, June 26, 1897, 24 R. 976, 34 S.L.R. 739.
The pursuer argued, that in the circumstances of the case, having regard to the facts (1) that the trustees had, according to the statement of their own agents, a sufficient sum in their hands to which the pursuer had right to secure their claim for expenses, and (2) that the pursuer had not left the country voluntarily, but in pursuance of his duty as a soldier, the motion should be refused— Simla Bank v. Home, May 21, 1870, 8 Macph. 781, 7 S.L.R. 487; Ritchie v. M'Intosh, June 2, 1881, 8 R. 747, 18 S.L.R. 528.
Page: 4↓
The case was sent to the roll.
Counsel for the Pursuer and Appellant— W. L. Mackenzie. Agent— H. H. Macbean, W.S.
Counsel for the Defenders and Respondents— M. P. Fraser. Agent— James Reid, W.S.
