Scottish Court of Session Decisions

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 72, is quoted supra in rubric.

Charles Dalrymple Gairdner, C.A., Glasgow, liquidator of John Scott Engines, Limited, Lonend Motor Works, Paisley, pursuer, brought an action in the Sheriff Court at Paisley against Captain A. J. Macarthur, defender, for an accounting by the defender of his intromissions with the machinery and tools which the pursuer averred had been removed by the defender or by others acting on his behalf or instructions without the pursuer's knowledge or consent from the premises at Lonend formerly occupied by John Scott Engines, Limited, and for payment of £150 sterling or such other sum as might be found due, or alternatively for the delivery of certain articles which the pursuer averred had been surreptitiously removed by the defender from the premises, or alternatively for the payment of £250, being the value of the articles

On 23rd January 1914 the Sheriff-Substitute ( Blair), after a proof, pronounced the following interlocutor:—“Finds in fact that the pursuer is the liquidator of John Scott Engines, Limited, which went into liquidation in April 1912; that John Scott Engines, Limited, were, previous to Whitsunday 1912, occupants of the premises known as Lonend Works, Paisley; that up till the end of 1911 the defender was a director of said concern; that the defender resides in Lonend House, which is adjoining the works, separated only by a arden wall; that defender has all along ad private access from his said residence into the works without the necessity of going round by the street and thence through the works gate, which is the usual entrance for workmen and material;

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that previous to the 28th May 1912, when the pursuer as liquidator was summarily ordered to remove from the premises known as Lonend Works by the defender, who, in addition to being a director of said concern prior to liquidation, was also factor for said premises, acting on behalf of his wife Mrs Eliza Macgregor Thom or Macarthur and others, who are residuary legatees of the late Mr P. C. Macgregor, and in right to let said premises known as Lonend Works: the defender entered the said works by his private access or otherwise in the absence of the workmen, on a date or dates unknown, and collected a large quantity of valuable material, consisting of metal pipes, jigs, bolts, and nuts, parts of machinery, tools, vaporisers, and one if not more carburettors, &c., all material used by and belonging to John Scott Engines in liquidation; that said material which the defender collected was surreptitiously stored by him under a stair in a part of the premises of Lonend Works, not let to John Scott Engines, Limited, and to which John Scott Engines, Limited, or any person in their employ, had not access; that the value of said goods and materials so concealed by the defender amounted to at least the sum of £150; that on or about the beginning of June 1912, after the premises had been vacated by the pursuer as liquidator aforesaid, the defender instructed Thomas M'Millan, engineer's labourer, and Daniel Gibson, a labourer, to remove said material from the place in which it was concealed to the large brick chimney in a part of the premises not let to John Scott Engines, Limited; that the said material was by the defender's instructions and in his presence deposited inside the chimney and bricked up, the bricking up being made on the defender's instructions to look as if it had been done long ago; that after the sale of the assets of John Scott Engines, Limited, which took place on 7th July 1912 in an adjoining store in the Saucel to which they had been removed by the liquidator, the said material, on defender's instructions, was taken out of the chimney and mixed and distributed with material bought at said sale by the defender or by Mr Robert Wilson, subsequently a director of and on behalf of a new company contemplated by them to be called Gleniffer Motors, Limited, and to occupy the same premises as were occupied by John Scott Engines, Limited; that in addition to said material bricked in the chimney the defender further removed and concealed within the outhouses of his private residence a box of brass bolts and a quantity of engine piping, all belonging to John Scott Engines, Limited, or the liquidator; that said additional material was on defender's instructions and in his presence removed by M'Millan and Gibson in the same way as the former and distributed among the stuff purchased at the liquidator's sale and brought back to Lonend Works: Further, that in order not to be observed when removing the material under the stair to the chimney, the defender caused a partition to be cut out so that the men M'Millan and Gibson and the defender himself could remove the stuff to the chimney under cover and free from being overlooked by any adjoining properties; that on or about 28th August 1912 a stock list was prepared by the defender, or on his instructions, of the goods and effects of Gleniffer Motors, Limited, which list included the misappropriated property mentioned above; that the purchases made by defender and his co-director Robert Wilson at the sale aforesaid amounted to £670 or thereby; that the said stock list, which was prepared in order to sell the concern to two gentlemen called M'Millan, amounted in value to over £3000; that a sale based on this stock list was eventually made to the Messrs M'Millan on 9th December 1912; that the Messrs M'Millan paid to the defender and those then having interest in Gleniffer Motors, Limited, a sum of over £3000: Finds accordingly that the defender having failed to account for his intromissions and actings with goods and material belonging to the pursuer as liquidator of John Scott Engines, Limited, appropriated by him, the defender, he is liable for the value thereof: Assesses the said value at the sum of £150: Decerns against the defender for the sum of £150, with interest at 5 per cent. from the date of citation: Finds the defender liable in expenses to pursuer,” &c.

Note.—“… Were these articles appropriated by the defender, as the pursuer alleges? This depends on whether one believes the evidence of the pursuer and his witnesses, principally M'Millan and Gibson. Now their story is circumstantial and definite, and if it is true it ends the matter. There is practically no defence. Captain Macarthur denies it in toto, and his wife, whom he called, and his servant-maid can in effect only say that they did not see him do it. I have no reason or ground whatever for doubting M'Millan and Gibson in their evidence about ‘Alladin's Cave’ and the sequel of the chimney. Both struck me as truthful and reliable witnesses, and I do not see what sort of motive they had to tell a deliberate lie.…”

The defender appealed to the Sheriff ( Wilson), and by minute lodged on 23rd February 1914 asked leave to lead the evidence of certain persons who had voluntarily approached him with information as to misappropriation of material belonging to John Scott Engines, Limited. On 13th March 1914 the Sheriff refused the appellant's motion for additional proof, and affirmed the interlocutor of the Sheriff-Substitute.

The defender appealed to the Court of Session, and on 14th January 1915 presented a note to the Lord Justice-Clerk for leave to amend the record and to lead additional proof.

The note stated, inter alia—“Of this date (March 26, 1914) the appellant appealed to your Lordship's Division of the Court, and of this other date (May 12, 1914) the case was sent to the short roll. As the result of further information obtained by

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him, the appellant of this date (July 1, 1914) reported the whole circumstances to the Lord Advocate with the request that he would give them his consideration with the view, if so advised, of instituting criminal proceedings. Of this date (November 24, 1914) the said chimney-stalk was on the instructions of the Lord Advocate opened by a man of skill in the presence of, inter alios, men of skill representing the appellant, and a thorough examination from the inside as well as from the outside was made possible. As a result of the examination it appears, and the appellant believes and avers, that the chimney was neither opened nor bricked up at or about the dates alleged by the said Thomas M'Millan and Daniel Gibson, nor for many years before, and that the account given by the said Thomas M'Millan and Daniel Gibson of the placing of the said articles in the chimney and the subsequent removal of them therefrom is not true. The case against the appellant depends in this respect entirely upon the evidence of these two witnesses, as appears from the notes of the evidence taken at the proof and the note appended to the Sheriff-Substitute's interlocutor of 23rd January 1914, and it is on their evidence alone that the aforesaid findings that articles were removed by them to the chimney-stalk, built in, and afterwards removed therefrom, all by the appellant's instructions, are based. The appellant has been informed that the Lord Advocate has decided to suspend further inquiries until after final judgment in this appeal. In these circumstances the appellant desires to amend the record in terms of the proposed amendment hereto appended and to lead proof in support of the averments contained therein, and he accordingly humbly submits this note to your Lordship.”

The proposed amendment was as follows:—“Explained that the chimney-stalk referred to is about 200 feet high, is built of common brick, and was erected about fifty years ago; the base is about 20 feet square outside, and inside it is circular, with the result that the structure is very much thicker at the corners than elsewhere. There are portholes at the bottom of this structure on all four sides—all of which were bricked up except that on the south, into which a large flue about 9 feet long and about 5 1 2 feet high was led; this flue was bricked up at its outer or southern end (which is 9 feet from the chimney-stalk) many, and at least more than three, years ago. Within said rectangular stalk there is an inner lining, circular in form, built of fire-brick about 14 inches thick, and about 30 feet high. There is an air space of 2 or 3 inches all round this lining between it and the stalk. No opening has ever been made in the west or north sides of the said rectangular brick structure since it was erected, except one in the porthole on the west side made on 24th November 1914 by instructions of the Lord Advocate. No opening has been made on the east side for many, and at least more than three, years, nor has any opening been made in the south side since the chimney was built. The built-up entrance into the said flue has never been opened since it was originally built up. No opening into the said square chimney-stalk was made or rebuilt in 1912, and particularly no such opening was made or rebuilt in May, June, or July 1912. A plan and model of the said chimney and adjacent buildings are produced herewith and referred to.”

Answers were lodged for the pursuer and respondent objecting to the amendment being allowed, but, if allowed, proposing an amendment to the effect that he had had no notice of the opening of the chimney, and did not know on whose instructions it had been opened.

Argued for the respondent—The wide powers conferred on the Court by recent legislation might entitle the appellant to ask leave to amend his record, but he was not entitled to lead additional proof except on a sufficient averment of res noviter, which did not exist in the present case. The facts on which the appellant desired to lead further evidence were fully before him on record, and his sole reason for the present application was that he did not attach sufficient importance to them. The reasons which ruled the Court in dealing strictly with such applications were (1) the unfairness to the opposite party which would ensue if a case once decided could be opened up on these grounds, and (2) the fact that public policy demanded that there should be an end of litigation. In this respect there was no difference between a proof in the Sheriff Court and in the Court of Session, except that in the one case the power of the Court was statutory and in the other discretionary. The principles which regulated the admission of fresh evidence in such cases were the same as ruled in cases of reduction and res judicata. The authorities supported these contentions— Lockyer v. Ferryman, March 6, 1877, 4 R. (H.L.), 32; Glengarnock Iron and Steel Company, Limited, v. Cooper & Company, June 12, 1895, 22 R. 672, 32 S.L.R. 546; Brown v. Hastie & Company, July 16, 1904, 6 F. 1001, 41 S.L.R. 838; Mackintosh's Trustees v. Stewart's Trustees, February 6, 1906, 8 F. 467, 43 S.L.R. 363; Campbell v. Campbell (Breadalbane), February 10, 1865, 3 Macph. 501; Gelot v. Stewart, March 4, 1870, 8 Macph. 649, 7 S.L.R. 372, July 19, 1871, 9 Macph. 1057, 8 S.L.R. 688. There must be a new issue different from the one that had been already tried, and a mere averment of perjury was not enough— Snodgrass v. Hunter, November 8, 1899, 2 F. 76, 37 S.L.R. 60. There was a difference between res noviter and a mere adminicle of evidence such as the proposed amendment disclosed— Longworth v. Yelverton, March 10, 1865, 3 Macph. 645; Allan v. Stott, June 14, 1893, 20 R. 804, 30 S.L.R. 728; Coul v. Ayr County Council, 1909 S.C. 422, 46 S.L.R. 338. The appellant could competently have led evidence on the matter of the amendment at the proof, and sibi imputet that he had neglected to do so— Edinburgh and District Water Trustees v. Clippens Oil Company, Limited, July 7, 1899, 1 F. 899, 36 S.L.R. 710.

Argued for the appellant—It was true that the Court would only allow additional

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proof in exceptional circumstances, but such circumstances existed in the present case. The appellant made a precise and specific charge of perjury, and had reported the case to the Crown. In this respect the case differed from a mere general averment of perjury, such as had been refused effect to as a ground for opening up a proof— Begg v. Begg, February 27, 1889, 16 R. 550, 26 S.L.R. 402. Further, the present case was not one of reduction, but a living process, and under the Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 72, the Court had wide powers to allow the motion. That statute gave the Court greater liberty in a question of this kind in a Sheriff Court case than in a Court of Session case where the Court's powers did not depend on statute— Taylor v. Provan, June 16, 1864, 2 Macph. 1226; Mitchell and Others v. Sellar, January 22, 1915, 52 S.L.R. 300; Snodgrass v. Hunter, cit. sup.

At advising—