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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Dowall v Campbell. [1838] CS 16_629 (17 February 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS0629.html Cite as: [1838] CS 16_629 |
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Page: 629↓
Subject_Process—Conjoining Actions.—
A reduction of a mutual settlement granted by a party and his deceased wife, was brought against the party by one of five surviving brothers and sisters of the wife, and a record was in course of being made up; an action was thereafter brought by the party against the four other brothers and sisters, to have it declared that the deed was valid and effectual, and to have them interdicted and discharged from molesting him in the enjoyment of his property;—Held that the two processes ought to be conjoined, reserving entire all pleas competent to the pursuer of the reduction, in reference to the examination of the defenders in the action of declarator.
Mary M'Dowall or M'Quaker, who was one of five surviving sisters and brothers of the deceased wife of Donald Campbell, raised action, along with her husband, against Campbell, to have an alleged mutual settlement granted by him and Mrs Campbell reduced upon various grounds of law. Campbell then brought an action of declarator, narrating the action as above mentioned, and directed against the four brothers and sisters of Mrs M'Quaker, nominatim, “that the whole parties having an interest in the foresaid action of reduction, or in the challenge of the said deed, may be in Court, and the present action conjoined with the foresaid action of reduction,” and concluding to have it found and declared that the mutual settlement between Campbell and his late wife was a valid and effectual deed, and to have the defenders interdicted and discharged from molesting him in the enjoyment of his property. No appearance was made for any of the defenders in this declarator.
While a record was in course of being made up in the action of reduction, the Lord Ordinary, on the motion of Campbell, “conjoined this process of declarator with the action of reduction, reserving all pleas competent to the pursuers of the reduction in reference to the examination of the defenders, in the present action or otherwise, entire, in the same manner as if no conjunction had taken place,” at the same time appointing the defenders to lodge revised answers to the pursuer's revised condescendence. Against this interlocutor Mrs M'Quaker reclaimed, praying the Court to disjoin the actions, and to proceed with the action of reduction; contending that it was incompetent to conjoin this process with one in which she had no interest, and with which she was not connected, and that the only course the pursuer of the declarator was entitled to take, was to have obtained decree in absence against the defenders.
The Court, looking to the reservation in the Lord Ordinary's interlocutor, adhered.
Solicitors: Agents.
