Scottish Court of Session Decisions

Lord President—In this case the Lord Ordinary found the proceedings incompetent and dismissed the same, and his ground is in respect of the dependence of a previous action, to which this is represented as being supplementary. I am not able to agree with him in that. I think it is a competent action, whatever may be its fate hereafter. The first action by Roy against Hamilton & Company concluded for specific items amounting to £4292, which was represented on the record as being a balance due on a variety of accounts to him as agent. In the first action Roy says, in the 21st article of the condescendence, that since he resigned his situation as agent, he has endeavoured to induce the defenders to adjust their account with him, but without success, and on 23d May 1865, raised an action against them for £4292, 12s. 1d., and interest, under deduction of sums paid to account. The sum sued for was estimated by the pursuer from accounts furnished to him by the defender. These accounts so furnished to the pursuer have now been ascertained to be erroneous in several respects, and “accordingly this action has been raised in supplement of the other action, and with a view to its being conjoined therewith.” And then in the 13th article he says—“The balance due to the pursuer for his services prior to 5th November 1857 amounted to the sum of £300 of salary, exclusive of the ‘dash’ or per centage, which was not fixed. The pursuer was willing and offered to accept of the sum of £100 in full of the said dash, but the defender did not agree to the said offer, and it is hereby withdrawn.”

The effect of these two additions to the claim of the pursuer is to raise the amount from £4292, as concluded for in the first action, to £6200, as concluded for in this action. Whether the pursuer is well founded in making this additional claim, we have at present no means of judging, and it would be premature to enquire. Whether he is bound by anything in the former action, or outwith it, is a matter we have nothing to do with, but what I say is, that there is a claim in this action amounting to £2000 over the claim in the former action, and it appears to me that it must be competent to make that claim in some form or another. It may be a bad claim, but it is inconsistent with the forms of process in any Court to say that it is incompetent. And yet the Lord Ordinary has found that the summons is incompetent. If he means by that that the claim is incompetent, I do not agree with him. He may, perhaps, mean that it is put forward in an incompetent form. That leads me to consider the conclusions of the action. Now, the first conclusion is that this action should be conjoined with the former one. I give no final opinion on that matter. I am very clear that it is inconvenient to join them in their present state, and the Lord Ordinary probably is of the same opinion; but as to whether they may be afterwards conjoined, we cannot anticipate. In the other action, a large body of evidence has been taken, and now this additional claim is set up. It is not necessary to the subsistence of this summons that it should be conjoined, for the second conclusion is, “the said summons being conjoined, or whether conjoined or not,” and therefore in the second alternative I must inquire what are the other conclusions? They are for the entire sum of £6260, but under deduction of sums paid to account, and also of such part as may be decerned for in the first action. That appears to me to be a perfectly competent conclusion in form for recovery of the additional claim, on the assumption that the pursuer is well founded on the merits. I therefore think that the preliminary objections are not well founded. It is not of much consequence whether this is a supplementary or a separate summons. It is called a supplementary summons, but a summons by being called supplementary is not necessarily made so. It is supplementary when it cannot go on without the other, but it may be supplementary by adding to the former claim. But that is, in a sense, not supplementary, but separate and substantive. That is the case here. This summons could stand alone. There is no statutory rule established by Statute or Act of Sederunt to regulate this matter. We are to deal fairly with it on the ordinary principles of process, and I see no difficulty in sustaining this summons. There are some things mixed up in the preliminary pleas that may become available to the defender afterwards; for example, in the second plea, he says— [ reads second plea]. If you abstract the word “incompetent” it may become a good plea on the merits. I suggest that, to prevent the defender suffering prejudice, we dispose of the first and second pleas as preliminary pleas, but reserving them as pleas on the merits.

Lord Curriehill concurred.

Lord Deas.—I object to any reservation of these pleas that shall imply that they are proper pleas on the merits, and nothing else. If this summons could be regarded as a summons to be used in conjunction with the first action, to the effect of introducing new matter into it, I should think it was incompetent, for when there is a closed record it is not competent to introduce into it by supplementary summons anything that could not be introduced by amendment of the libel. That was decided in the case of the Glasgow Union Canal Company. The judges laid that down there,— I don't say that that was the only ground of judgment—but each made the observation that it would defeat the whole intention of the Judicature Act as to finality of records, and the necessity of getting over that only by abandonment of the action, or by condescendence of res noviter, if new statements and new matter could be introduced into a closed record by a supplementary action. I cannot agree with your Lordship if you express an opinion that this action is competent. It may be competent or incompetent. Dealing with it strictly on the face of it, I should say it was incompetent, for it is supplementary with the view of conjunction. It is true that an action may be supplementary in another sense, simply as an additional claim, not comprehended in the first action. But that is not what we call a supplementary action. You bring an action for an additional claim, and then in respect of similarity, you conjoin them. Why I don't say now that it is incompetent is that the summons says ‘whether conjoined or not,’ though

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