Scottish Court of Session Decisions

The respondents reclaimed.

Hall ( J. C. Smith with him), for reclaimers, did not press the plea of incompetency, but argued the case on the merits.

Pattison and Burnet, for Cockburn and Others, were not called on.

At advising—

Lord President—The conclusion of this summons is [ reads conclusion]. I don't think there is anything incompetent in that conclusion; but then, to enable a party to insist as pursuer in such a conclusion, he must put himself in one of two positions in respect of title. He must either show that, being the original debtor to this promissory-note, he became the creditor, or at least acquired a title to the note itself from having retired it, or in some other way; or he might show that he had retired it with his own funds, and that the proceeds when discounted have been applied for behoof of the defender, and then he would have had a good action of debt. But when we look at the condescendence in the Inferior Court, and look for an allegation of title, we look in vain. It is not said that they did from their own funds retire it when due, or that they had a title in any other way. On the contrary, as Lord Deas said, not only is there an absence of any averment that this note was retired from their own funds, but there is something very like a careful avoiding of such averment, creating some suspicion of want of good faith. But it is clear that they desired to avoid a statement of title, for in the supplementary action they had another opportunity of making the matter plain, and yet in that condescendence too there is the same absence of any allegation sufficient to found a title to sue. For these reasons I think we ought to adhere. I don't quite agree with the Lord Ordinary in his view as to the relevancy, but he is right in his conclusion.

Lord Curriehill concurred.

Lord Deas—A statement that these two parties granted the bill and got the money for behoof of the members of the Society, and then applied it for their behoof, would be sufficient to entitle them to insist in this action, if they were really the parties who retired the bill. But it was not granted by them alone, but by the treasurer also for behoof of the society, so that the possession of the bill by them does not let us know whether it was not retired by the treasurer, without any allegation that they retired it from their own funds. On looking at the conclusions of the first action they are apt to impose on one, and at first sight they imposed on me; for it looks as if it was meant that the pursuers had on their own responsibility and from their own funds paid that sum to the different members. But it is plain that that is not the real meaning of the pursuers from the very conclusions of the summons. It only means that the money was got and paid over, but has no reference to the retirement of the bill; and that is clear from the statements in the record. In the supplementary action it is still clearer that the pursuers avoid the question; for articles 10 and 11 cannot be read without seeing that they purposely refrain from stating a title. They say that the bill was granted, and that the bank raised diligence on it, and then they applied for the names of the members to enable them to raise an action against them. But it is clear that they avoid saying how they got the bill. They jump from the statement that the bank threatened diligence, to this, that they then brought an action, without any intermediate step. The statements on the record are purposely vague and irrelevant, and it would only be creating expense to the parties to allow an amendment of the record, even if that were competent.

Lord Ardmillan—I am not sure whether, if it were pleaded that there had been an accidental omission of the statement, that the bill had been retired with the funds of the pursuers, it might not have been competent to permit an amendment. If it was clearly an omission, the parties might have caused that to be stated at the bar. But it is plain that counsel are in bona fide ignorance of the fact, while there has not been bona fides on the part of the party sending them here. The party entitled to sue is the party who paid the bank and obtained the right to sue. But the pursuers not only have not made any statement to that effect, but in the 10th article they avoid that question, and entirely omit, between the statement as to the bank having raised diligence and the statement of their bringing the action, any averment of their right to the bill; and even now, at the bar, they do not propose to add any such averment.