Scottish Court of Session Decisions

John Macfarlane Cook, accountant, Edinburgh, brought an action against (1) the Barnton Hotel Company, Limited, (2) Daniel Macdonald, wine and spirit merchant, (3) William Ritchie Rodger, S.S.C., and (4) John Patterson, merchant, Edinburgh.

The conclusions of the summons were in the following terms:—“Therefore the said defenders, The Barnton Hotel Company, Limited, Daniel M'Donald, William Ritchie Rodger, and John Patterson, ought and should be decerned and ordained, by decree of the Lords of our Council and Session, jointly and severally, to make payment to the pursuer of the sum of £70 sterling, with interest thereon at the rate of £5 per centum per annum, from the date of citation hereon until payment: Further, the said defenders, The Barnton Hotel Company, Limited, Daniel M'Donald, William Ritchie Rodger, and John Patterson, ought and should be decerned and ordained, by decree of the said Lords of our Council and Session, all jointly and severally, to make payment to the pursuer of the sum of £1992, 15s. sterling, with the interest thereof, at the rate of £5 per centum per annum from the date of citation hereon until payment.”

There were also two other conclusions for smaller sums, one directed against all the defenders “jointly and severally,” and the other directed against the defenders The Barnton Hotel Company, Limited; and also a conclusion for expenses directed against all the defenders “conjunctly and severally.”

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In support of these conclusions Cook averred that M'Donald, Rodger, and Patterson were the promoters of the Barnton Hotel Company, which was formed in 1896, and that they had since its formation been the only directors. In support of the conclusion for £70, he averred that he had performed certain services in connection with the promotion of the company prior to its incorporation; and in support of the conclusion for £1992, 15s. he averred that that sum was due to him in respect of services performed for the company since its incorporation.

Joint defences were lodged, in which the pursuer's material averments were denied.

The defenders pleaded, inter alia—“(4) The defenders Mr Patterson and The Barnton Hotel Company not having employed the pursuer in connection with the formation of said company, they and the other defenders are entitled to absolvitor. (5) Any claim competent to the pursuer for remuneration being a claim only against the Barnton Hotel Company, the whole defenders ought to be assoilzied from the other conclusions of the summons.”

After the record was closed the pursuer lodged a minute by which he craved leave to amend the summons by inserting the words “or severally” after the words “jointly or severally” or “conjunctly and severally” in each of the four conclusions of the summons (including the conclusion for expenses), which were directed both against The Barnton Hotel Company, Limited, and the three individual defenders. The defenders objected to this amendment being allowed.

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), section 29, enacts as follows:—“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.”

On 7th March 1900 the Lord Ordinary ( Stormonth Darling) pronounced the following interlocutor:—“Allows the summons to be amended as proposed in the minute for the pursuer: Finds that the pursuer has not stated any relevant case against the defenders The Barnton Hotel Company, Limited, in support of the conclusion for £70, and that he has not stated any relevant case against the individual defenders Daniel M'Donald, William Ritchie Rodger, and John Patterson, in support of the conclusion for £1992, 15s. sterling: Quoad ultra repels the preliminary pleas for the defenders, and grants leave to reclaim.”

The defenders reclaimed, and argued— The action as laid was incompetent, in respect that it concluded for conjunct and several decree and had no averment of conjunct and several liability— Barr v. Neilsons, March 20, 1868, 6 Macph. 651; Neilson v. Wilson, March 12, 1890, 17 R. 608. Therefore what it was proposed to do was to make an incompetent action competent—in effect to make a new action. That was going beyond the powers of amendment allowed by section 29 of the 1868 Act (quoted supra). It might be true that no larger sum was embraced by the amendment than by the original summons, but the individual liability of the different defenders was very gravely affected. If decree passed under the original summons, any one defender, if called upon to pay, might have relief from his co-defenders, whereas if decree passed under the amended summons against one defender severally he could have no relief. Suppose a summons concluded for £1000 against A and £100 against B, to reverse these proportions would not subject any larger sum to the adjudication of the Court, but would entirely alter the character of the action. The Court had a discretion in allowing an amendment, and would not allow it in cases like the present, where the proposed amendment might be within the words of the section but against its spirit— Leny v. Magistrates of Dunfermline, March 20, 1894, 21 R. 749; Russell, Hope, & Company v. Pillans, December 7, 1895, 23 R. 256. The proper use of an amendment was not to save the action when the pursuer, as here, had mistaken his remedy, but to cure defects of form, as in a case where in an action for a sum due under a bill of exchange the pursuer had omitted to set forth the bill in the summons— Bank of Scotland v. W. & G. Fergusson, November 24, 1898, 1 F. 96.

Argued for the respondent—The amendment was competent. The tests of competency were laid down in the section, and they were (1) Is the amendment necessary to determine the controversy between the parties? and (2), as a negative test, Does it subject any larger sum to the adjudication of the Court. This was exactly the kind of case which satisfied these tests. There was a controversy between the parties which could not be tried if the amendment were not allowed, and the sum at issue was the same as before. It was quite permissible to make an incompetent action competent by amendment—that was the object of section 29— Rottenburg v. Duncan, October 23, 1896, 24 R. 35; Bank of Scotland v. W. & G. Fergusson, cit. supra. The amendment obviously did not enlarge the fund submitted to the Court, nor did it really enlarge the liability of the individual defenders. If they had rights of relief inter se, these would not be affected, and the interlocutor could be framed so as to reserve all questions regarding such rights. If the Court had a discretion in allowing an amendment, this was eminently a case in which it should be allowed.

At advising—