Scottish Court of Session Decisions

An action was raised by A, judicial factor on the estates of the dissolved firm of B, C, & D, with consent and concurrence of B, against C & D, calling upon them to implement a certain agreement which had been made on 1st June 1892 with regard to the dissolution of the firm. In the course of the action, B, the concurring pursuer, was represented by separate counsel, and intervened at various stages. He objected to any order being pronounced against him, on the ground that he was not a party to the case.

On 19th December 1893 the Lord Ordinary ( Low) pronounced an interlocutor, in which, inter alia, he found that by the agreement above referred to the defenders had agreed, upon payment of £500 by the concurring pursuer to the pursuer, to discharge the concurring pursuer of all claims they or the dissolved firm might have against him, and that the said sum fell to be paid by the concurring pursuer to the pursuer, but refused as incompetent a motion by the

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defenders that the pursuer should be ordained to consign said sum.

B, the concurring pursuer, having failed to pay the said sum, the Lord Ordinary on 8th March 1894 pronounced an interlocutor, wherein, in respect of the failure of the concurring pursuer to pay the said sum, he assoilzied the defenders from the conclusions of the summons, finding no expenses due to or by either party.

The concurring pursuer reclaimed against this interlocutor, and argued—He had a good title to reclaim, for his was the real interest in the case though it was formally brought up by the judicial factor. The Court of Session Act of 1868 contemplated the possibility of others than the pursuer or defender in an action presenting a reclaiming-note. Section 52 provided that “Every reclaiming-note … shall have the effect of submitting to the review of the Inner House the whole of the prior interlocutors of the Lord Ordinary of whatever date, not only at the instance of the party reclaiming, but also at the instance of all or any of the other parties who have appeared in the cause.” He had been allowed to appear without any objection, and was therefore entitled to be heard. He would of course be liable to any expenses incurred after the date of the reclaiming-note— Morrison v. Gowans, November 1, 1873, 1 R. 116. This was analogous to the case of a pupil bringing an action with consent where the consenter might be found liable in expenses, and had the right to reclaim.

Argued for the respondents—The concurring pursuer was not really a party to the action, though he called himself so. He had refused to obey an order of the Court, as not being a party to the action. He had no right to come forward now and reclaim as if he were a party to it. This was not a case where a title defective in itself could be remedied by the concurrence of someone else. The reclaimer should have sisted himself as a party to the action before judgment was given in the Outer House if he wished to reclaim.

At advising—