Scottish Court of Session Decisions

Lord President—The pursuer sues as owner of the ship “Oscar,” by which he means the sole owner. It now turns out that the pursuer is not the sole owner. He proposes to substitute for himself in the summons the owners of the ship “Oscar.” This is really a change of pursuers, for I do not think it makes any difference that he happens to be one of the parties whom he proposes to substitute. In fact, the pursuer finds that he has not the title to sue the present action. It is said that the proposal is justified by the 29th section of the Court of Session Act 1868. I agree with the Lord Ordinary that the proposal does not fall within the provisions of that section. What is authorised by the 29th section is, all such amendments as may be necessary for the purpose of determining, in the existing action or proceeding, the real question in controversy between the parties.” Following out the object and spirit of that enactment, we have allowed a considerable latitude in amending records, but we have never gone beyond the true object of the statute, viz., allowing such amendments as will enable the Court to determine the true question between the parties, i.e., the parties to the record. It would be very strange if we could allow an amendment which should have the effect of raising a question with different parties. As the pursuer could not try the question to the effect of recovering the whole damages, we are asked to amend the record so as to enable us to try that question between the defender and different parties. I consider this incompetent. On this ground alone I think the amendment should be refused.

But the difficulty of allowing the ameudment is illustrated and confirmed by a specialty in the case. The only way in which jurisdiction could be founded against the defender was by arrestment. Now, arrestment jurisdictionis fundandœ causa has not the effect of subjecting the person against whom the arrestment is used to the jurisdiction of the Court in all actions, even at the instance of the same party, or involving the same subject-matter. It founds jurisdiction only in a particular action. The other parties whom it is proposed to make pursuers have not used arrestments to found jurisdiction. The defender is not bound to answer at their instance. The first thing that would happen, if we were to allow this amendment, would be that the defender would object to the jurisdiction of the Court, and I do not see any answer to the objection. We cannot sanction an amendment which would have the effect of destroying the very jurisdiction we are exercising.

Lord Deas—I consider it a conclusive objection to the proposed amendment that, according to the original pursuer's own showing, there would be no jurisdiction against the defender as regards the new pursuers.

Lord Ardmillan concurred on both grounds.

Lord Kinloch—I should not like to decide that in no case whatever can a new pursuer be allowed to appear. There might be twenty owners of a ship, nineteen might appear, and the twentieth be omitted by accident. I do not decide whether his name might not be subsequently added to the summons. But this is a different case. Independently of the specialty about arrestment, I should say it is not a case for the application of the statute. But the specialty as regards arrestment

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