Scottish Court of Session Decisions

The Court of Session (Scotland) Act 1868 (31 and 32 Vict. cap. 100), section 29, enacts—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.…

James Cousin Stevens, Edinburgh, pursuer, brought an action against Motherwell Entertainments Limited, incorporated under the Companies (Consolidation) Act 1908, and having its registered office at 47 Frederick Street, Edinburgh, and Robert Colburn Buchanan, theatrical director, Ulverston, Oswald Road, Edinburgh, defenders, for payment of certain sums amounting in all to £885, 5s. 10d., as provided for, inter alia, in and by (1) an agreement “between the pursuer and the defenders, Motherwell Entertainments Limited, dated 8th July 1913, and relative missives therein referred to, and (2) deed of guarantee granted by the defender Robert Colburn Buchanan to the pursuer, dated 31st July 1913.”

The Lord Ordinary ( Anderson), after a proof, awarded the pursuer the sum of £213, 12s. 10d. with expenses.

The defenders reclaimed, and boxed with the reclaiming note a copy of the closed record and of the interlocutors in the cause, but not the notes of evidence. Subsequently they craved the Court in view of facts which the proof had disclosed to allow a minute of amendment to be lodged adding certain averments and pleas-in-law to the record. The respondent admitted the relevancy of

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the proposed amendment, but moved the Court to dismiss the reclaiming note in respect of the failure of the reclaimers to print the evidence in the proof from which, in conjunction with documents in process, he maintained that he could show, even if the amendment were allowed, that he was still entitled to hold the decree.

Argued for the reclaimers—There was no necessity for printing the evidence, since the reclaiming note contained all that was required under the Judicature Act 1825 (6 Geo. IV, cap. 120), section 18. The Court looked with disfavour on the printing of unnecessary portions of process— Cranston v. Mallow & Lien, 1912 S.C. 112, 49 S.L.R. 186. The legality of the amendment was regulated by the Court of Session (Scotland) Act 1868 (31 and 32 Vict. cap. 100), sec. 29, which made the amendment of the record imperative when necessary for determining the real question in controversy— Gelot v. Stewart, March 4, 1870, 8 Macph. 649, Lord Neaves at 656, 7 S.L.R. 372; Guinness, Mahon, & Company v. Coats Iron and Steel Company, January 21, 1891, 18 R. 441, 28 S.L.R. 285. The amendment contained averments of res noviter veniens ad notitiam which could always be added to record— Johnston v. Johnston, March 14, 1903, 5 F. 659, 40 S.L.R. 499. When an amendment of record was allowed the proper course was to remit to the judge of first instance to take additional proof— Muir & Son, Limited v. Edinburgh and Leith Corporations Gas Commissioners, May 22, 1906, 8 F. 810, 43 S.L.R. 598.

Argued for the respondent—The reclaiming note should be dismissed in respect that the evidence led at the proof had not been printed, in the light of which alone the amendment would be intelligible— Muir v. Mackenzie, October 15, 1881, 9 R. 10, Lord President Inglis at 11, 19 S.L.R. 3; Penney v. Sawers and Others, July 3, 1890, 27 S.L.R. 988. Assuming the proposed amendment were made, it could be shown from the evidence and the documents that the respondent was entitled to the decree he held. It should therefore be disallowed.