Scottish Court of Session Decisions

Lord President—This action began in the Sheriff Court at the instance of a Mr M'Athey against the Patriotic Investment Society, Limited, and asked a decree against the defenders for payment of £50 sterling, with the legal interest thereon from the 8th day of August 1905 till payment, and, second, another sum of £50 sterling. The ground of the action was improper dismissal from a post he had held under the company sued—that was the one sum; and the other sum was a return which he had advanced for shares, taking shares being part of the bargain under which he was given his place. The action came to be defended by the liquidator of the company because the company was in liquidation, and the Sheriff-Substitute gave decree to a certain extent in favour of the pursuer. The defenders appealed to the Sheriff, and then, before the Sheriff, there were negotiations between the parties for a settlement, and on the 1st February 1907 there is an interlocutor by the Sheriff, “in respect that parties are endeavouring to arrange a settlement, adjourns the debate sine die.” Well, that was on the 1st February, and on the 19th February the procurators for the parties lodged a minute in these terms — “Tne parties having agreed to settle the action by a payment of £45 in name of pursuer's expenses, said payment to be made by the liquidator out of the first moneys which come into his hands, and by pursuer receiving a preferential ranking for £50 on the estate of the defending society now in liquidation, said payment for expenses and preferential ranking to be in full settlement of all claims competent to the pursuer against the defenders, they concur in craving the Court to interpone its authority hereto, and to decern accordingly.”

That minute was signed by the procurators, and it was also signed by the liquidator. Well, upon that minute nothing was done, and nothing having been done the case went to sleep. It seems that nothing was done in another sense—that is to say, the pursuer never got any money; and accordingly in June 1908, that being a period of about fifteen or sixteen months after the last interlocutor, a minute was put in in the ordinary form wakening the cause, and the cause was wakened. Being wakened, it was taken up by the Sheriff-Principal, and he pronounced an interlocutor on 10th March 1909, in which, having heard the parties' procurators, he allows the joint-minute for the parties lodged on 19th November 1907 to be withdrawn, recals the interlocutor of the Sheriff-Substitute, and then de novo proceeds to find in favour of the pursuer to a certain extent, quoad ultra assoilzieing the defenders, and finding the pursuer entitled to expenses, including the expenses of the appeal.

Against that interlocutor the present appeal has been taken to your Lordships, and the first argument that we have had is that it was wrong for the Sheriff to go and proceed upon the merits as he had done, because the case had already been settled by the joint-minute already quoted. At the first hearing it occurred to your Lordships that the expression in the Sheriff's interlocutor, “allows the joint-minute for the parties … to be withdrawn,” was really ambiguous, because it did not exactly tell us whether he held it was withdrawn of right or that it was withdrawn of mutual consent. We remitted to the Sheriff to report upon that matter, and we have his report before us. It is sufficient to say of the report that it shows that the withdrawing was not of consent. He says quite frankly that the matter which originally weighed most with him was a view of the law which he has now come to think erroneous, although he had the opposite opinion at that time, namely, that a joint-minute could at any time be withdrawn if the authority of the Court had not been interponed. But he also states that besides that there was a moving consideration in his mind, namely, that in the whole circumstances, as no money had been paid, it was proper that the minute should be withdrawn;

In order that there should be no mistake about it, I think it as well to say that I think upon the first question the Sheriff's second thoughts were right. I think if parties by themselves or their procurators choose to make a settlement of the case, and that is authenticated in the ordinary way by joint-minute, it is out of the question to hold that there is any locus pœnitentice for the parties so bound up to the time when the Court have interponed authority. The settlement is a good settlement although the Court has not interponed authority thereto. [ His Lordship proceeded to dispose of the rest of the case.]

Lord Kinnear,—I concur.

Lord Johnston—I also concur.

Lord M'Laren was absent.

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