Scottish Court of Session Decisions

The Court of Session Act 1868 (30 and 31 Vict. cap. 100) by sec. 29 provides that “The Court or 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 … 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 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

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original pleading unless all the parties interested shall consent to such amendment.” …

In 1893 W. M. Leny of Dalswinton, Dumfriesshire, proprietor of the lands of Bell-yeoman, Bankhead, and others, in the county of Fife, and R. W. Will, S.S.C., in whom these lands were then vested, brought an action against the Magistrates of Dunfermline to have it found and declared that “the pursuers and their authors acquired from the defenders, their authors and predecessors, and have, along with the other proprietors, or some of them whose lands lie around and border on the loch called Moncur or Town's Loch, lying in the county of Fife, a joint right or common property in said loch, and in the solum thereof, and minerals therein or there under: And it ought and should be found and declared, by decree foresaid, that the defenders, the said Magistrates and Town Council and the community of said burgh, have no exclusive right either of property or of use in or over the said loch or the solum thereof: And further, the said defenders ought and should be decerned and ordained, by decree foresaid, to desist and cease from molesting and interrupting the pursuers in the exercise of any of their rights in the said loch and solum thereof.”

They pleaded—“(1) The pursuers' title condescended on confers upon them a right of common property in the said loch and a joint right to use the same, along with the other proprietors whose lands lie along the shore or margin of the said loch, and they are therefore entitled to decree as concluded for, with expenses.”

The pursuers after the record was closed sought, without practically altering the condescendence, to amend the summons by substituting for the words “a joint right and common property in said loch and in the solum thereof, and minerals therein or there under” the following—“A good and undoubted joint right or right of common property in the said loch and the waters thereof, and that, subject to said joint right or right of common property and the incidents thereof, the pursuers and their authors acquired from the defenders, their authors and predecessors, and have a good and undoubted right of property in the solum of said loch, extending to the medium filum of said loch ex adverso of the lands of all and whole these three parks of land on the north of Kingseathill, lying south of the said loch—[ here follows the description]—and a good and undoubted right of property in the minerals therein or there under.”

They also desired to substitute for the declarator of common right in the solum of the loch, declarator that the defenders had no right in or over the solum thereof so far as ex adverso of the pursuers' said lands or in the minerals therein or there under, and to add at the end the words “and minerals therein or thereunder.” To their plea after the words “common property in the said loch” they sought to add “and also a right of property in the solum and the minerals therein and thereunder ex adverso of their lands described in the summons.”

The defenders objected to these amendments, but Lord Low by interlocutor of 16th February 1894 allowed them to be made.

The defenders reclaimed, and argued that the amendments proposed were incompetent under the Court of Session Act, as they would have the effect of subjecting to the adjudication of the Court a different property, or at least, which was also incompetent, a different right of property from that specified in the original pleadings. Only a joint right was originally claimed, but now an exclusive right of property was sought to be established. It was not enough to justify the amendment that the subject was the same if the “real question in controversy” with respect to that subject was essentially different. The case was ruled by Forbes v. Watt's Trustees, November 9, 1870, 9 Macph. 96, and Gibson's Trustees v. Fraser, July 10, 1877, 4 R. 1001.

The respondents argued—The amendment was necessary to bring out the real question in controversy, and was such as the Act contemplated. It was not sought to subject any new fund or property to the adjudication of the Court. The facts as stated in the condescendence remained practically unaltered. The property originally claimed and now claimed was the minerals under the solum of this particular loch.

At advising—