Scottish Court of Session Decisions

Subject_1Process
Subject_2Amendment of Record
Subject_3Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 29. Headnote:

This was an action by the Caledonian Railway Company against John Chisholm for payment of £8105, 17s. as due to them for the carriage of sacks during a period of years for which there had been a contract between the parties. The various charges for carriage which made up the sum sued for were contained in an account produced with the summons. The Court having, as previously reported, repelled the plea that the triennial prescription applied, and allowed proof, the pursuers lodged a new account, and craved to have it substituted for that produced with the summons. The defender craved to have the new account withdrawn from the process. The change proposed involved the striking out and putting in of items, and a consequent alteration in the amount charged for freight. The amount claimed in the new account was restricted to the amount sued for under the conclusions of the action.

The Act 31 and 32 Vict. cap. 100, sec. 29, provides that “the Court or the Lord Ordinary may at any time amend any error or defect in the record or issues in any action or proceeding in the Court of Session, upon such terms as to expenses and otherwise as to the Court or Lord Ordinary shall seem proper; and 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 shall be so made; provided always, that it shall not be competent by amendment of the record or issues under this Act, to subject to the adjudication of the Court any larger sum or any other fund or property than such as are specified in the summons or other original pleading, unless all the parties interested shall consent to such amendment.”…

The Lord Ordinary refused the pursuers' motion, and found it unnecessary to dispose of the defender's, and granted leave to reclaim. The pursuers having reclaimed, the Court recalled the interlocutor and allowed the amendment, reserving all questions of expenses.