Scottish Court of Session Decisions

This was the action by John Haggart against Charles and James M'Pherson referred to in the case of M'Phersons v. Haggart, December 15, ante, p. 212. The general circumstances of the case were narrated in the report of the former action. The following were the minutes referred to by the Lord Ordinary ( Lee), upon which the present point depended. No. 11 of process, lodged January 8, was in these terms—“ Pearson, for the pursuer, stated that the pursuer accepted, and hereby accepts, the offer made by the defenders in article 9 of the statement of facts for them, and agreed, and hereby agrees, upon payment being made to him in conformity with the said offer, to grant an assignation in the defenders' favour of the Bank of Scotland's right, contained in the letter of guarantee dated 25th June 1879; and he craved the Court to decern accordingly.” And No. 12 of process, lodged February 15, was as follows—“M' Kechnie, for the defenders, stated that they withdrew, and hereby withdraw, the offer contained in the following terms:—‘The defenders are willing, and they hereby offer, each to pay his share of the foresaid sum of £539, 7s. 7d., upon condition of their obtaining an assignation to the said bank's right, contained in the foresaid letter of guarantee of June 1879,’—in answer 9 of their statement of facts; and counsel therefore craved the Lord Ordinary to delete the said offer from the record.”

The Lord Ordinary pronounced this interlocutor:—“Having resumed consideration of the cause, and heard counsel, on payment of three guineas of expenses allows the defender to amend his record as craved in the minute No. 12; and this having been done at the bar, sustains the amendment, and before answer allows to the defender a proof of his averments on record, and to the pursuer a conjunct probation: Appoints the proof to take place on a day to be afterwards fixed, and in so far as necessary grants leave to reclaim against this interlocutor.”

The following was his Lordship's note:—“This cause was sent to the procedure roll without any acceptance of the defenders' offer in statement 9. It was discussed in that roll on 6th January, the pursuer contending that he was entitled to decree unless the defender should prove his averments by writ or oath, and maintaining that he was not bound to grant any assignation to the defenders on payment. The defenders, on the other hand, contended that they were entitled to inquiry, and referred to Thorburn v. Howie, July 18, 1863, 1 M. 1169. But towards the close of the discussion the parties concurred in asking that the case should stand over to enable them to confer as to some arrangement. On January 8th the minute No. 11 was lodged by the pursuer, and the Lord Ordinary was again asked to allow the case to stand over to allow of an adjustment of the dispute. But no progress was made, and the Lord Ordinary was ultimately moved by the pursuer to ordain the defenders, in respect of the minute No. 11, to lodge in process a draft of an assignation to the bank's right under the guarantee of June 1879. It then appeared that there was a difference between the parties as to the extent of the assignation to be granted by the pursuer, and that the defenders were desirous of withdrawing their offer in statement 9 if they were understood as limited by its terms to an assignation of the bank's right under the guarantee of June 1879. The Lord Ordinary accordingly, on 15th February, allowed the defenders to lodge the minute No. 12, in terms of the interlocutor of that date, and appointed the discussion in the procedure roll to be resumed. It appeared to him that as the cause stood the question whether the pursuer was entitled, as matter of right, to end the discussion by lodging the minute No. 11, or whether the defenders were still entitled to maintain their pleas, was not a question which could be decided as a mere matter of contract. He was of opinion that it was a question of pleading, and that the pursuer's minute was not by itself conclusive against the defenders. The whole cause remained to be disposed of upon the record. The question for the Lord Ordinary was, what should be the procedure under that record? and it seemed to him not too late for the defenders, if there was any misunderstanding on their part, to crave leave to amend their record by withdrawing the offer, the effect being of course that both parties retain all their pleas unprejudiced. On condition therefore of the defenders paying expenses from 6th January, which he modified at £3, 3s., the Lord Ordinary allowed the defenders to amend as craved.”

The pursuer reclaimed.