Scottish Court of Session Decisions

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Cite as: [1906] ScotLR 43_683, [1906] SLR 43_683

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SCOTTISH_SLR_Court_of_Session

Page: 683↓

Court of Session Inner House First Division.

[Sheriff Court at Peebles.

Thursday, June 14 1906.

43 SLR 683

The Improved Edinburgh Property Investment Building Society

v.

Whites.

Subject_1Process
Subject_2Pursuer
Subject_3Designation
Subject_4Address of Pursuer (a Society) — “Building Society Incorporated under the Building Societies Act 1874” — Sheriff Courts Act 1876 (39 and 40 Vict. cap. 70), sec. 6.
Facts:

In a petition in the ordinary Sheriff Court the pursuer was designed as “The Improved Edinburgh Property Investment Building Society, Incorporated under The Building Societies Act 1874,” no address being given. Held that this description satisfied the requirements of the Sheriff Courts Act 1876, sec. 6.

Headnote:

The Sheriff Courts Act 1876, sec. 6, inter alia, enacts—“Every action in the ordinary Sheriff Court shall be commenced by a petition in one of the forms, as nearly as may be, contained in Schedule (A) annexed to this Act, in which the pursuer shall set forth the court in which the action is brought, his own name and designation, and the name and designation of the defender.…”

On 18th April 1905 “The Improved Edinburgh Property Investment Building Society, Incorporated under The Building Societies Act 1874,” presented a petition in the ordinary Sheriff Court at Peebles against Anthony White, contractor, and Christina White, spinster, residing at White Bank, Peebles, with conclusions for declarator and removing in respect of certain heritable subjects situated in Peebles. No address or further designation of the pursuer was given.

On 21st July 1905 the Sheriff-Substitute (Orphoot) pronounced an interlocutor in terms of the conclusions of the petition, and on 23rd October 1905 the Sheriff (Maconochie) adhered.

The defenders appealed to the First Division of the Court of Session, and there raised the point that the designation of the pursuer was insufficient.

Argued for the appellants—The action was incompetent, as the requirements of The Sheriff Courts Act 1876, section 6, had not been complied with, no proper designation or address of the pursuers being given on which an operative decree could follow— Joel v. Gill, November 23, 1859, 22 D. 6, per L.J.-C. Inglis, p. 12.

Counsel for the respondents was not called on.

Judgment:

Lord President—The point has been raised by counsel in this case that inasmuch as this is a petition under section 6 of the Sheriff Court Act of 1876, it ought to set forth the name and designation of the pursuer, and that the name as set forth here does not include a designation. We were referred

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to a remark of the Lord Justice-Clerk in Joel v. Gill—“I would state it as a general rule that the proper designation of any person is a, statement of his present occupation and residence.” No doubt that is the general rule, but I cannot say that residence must necessarily form part of the designation, which is given for the purpose of identification. In many cases no designation at all is needed. The instance of the Bank of Scotland was suggested in argument, and it has all along sued without an address or designation, and I have no doubt that a person like the Duke of Buccleuch could sue without an address being given. If an incorporated company gives its title under the Act there can be no room for doubt as to its identification. I am far from suggesting that a convenient practice should be departed from, but I do not think that as a matter of strict law the present petition ought to be dismissed. The objection therefore fails.

Lord M'laren—I agree with all that your Lordship has said. We were not referred to the clause in the Sheriff Court Act, but it requires the name and designation to be set forth. That explains why the address is given as a general rule, because the identification of an individual is imperfect without it. In the case of societies incorporated by Special Acts there was never any doubt that they could sue and be sued without the addition of a designation. The case of the Bank of Scotland is peculiar, because it is the oldest trading corporation in Scotland, but we often have actions before us by corporations such as railway companies which are never designed otherwise than by their names. Where a company is incorporated under a general Act you must look to its nature. 1 think that in the case of companies under the Building Societies Act 1874 the corporate name includes both name and designation.

Lord Kinnear—I agree. The objection is founded on section 6 of the Sheriff Court Act 1876, which provides that actions in the ordinary Sheriff Court shall be commenced by petition setting forth the name and designation of the parties. The question here is whether the pursuers have complied with this provision of the Act. I have no doubt that they have. The description of the pursuers is quite sufficient, because it identifies the particular society that is sueing, and distinguishes it from everybody else.

Lord Pearson concurred.

The Court dismissed the appeal, affirmed the interlocutor of the Sheriff and Sheriff-Substitute, and of new found, declared, decerned, and ordained in terms of the conclusions of the petition, with expenses.

Counsel:

Counsel for the Defenders and Appellants— A. A. Fraser. Agent— Stirling Craig, S.S.C.

Counsel for the Pursuers and Respondents— C. D. Murray. Agents— A. & A. S. Gordon, S.S.C.
1906