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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duthie v. Duthie Brothers & Co., and Another [1892] ScotLR 29_808 (21 June 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/29SLR0808.html Cite as: [1892] SLR 29_808, [1892] ScotLR 29_808 |
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Page: 808↓
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If a party who is allowed to amend his record upon certain conditions, puts his amendments on record, he is barred from thereafter objecting to the conditions upon which he has been allowed to amend.
Opinions by Lord Adam and Lord M'Laren, that under the 29th section of the Court of Session Act 1868, the Lord Ordinary has power to attach other conditions to the making of amendments than the mere payment of a sum of expenses.
An action was raised at the instance of Duthie Brothers & Company, shipowners, 6 Crosby Square, London, E.C., part owners and managers of the steam-ship “Telephone” of Aberdeen, against Robert Duthie, as the owner of 5/64th shares in said steamer, for payment of sums amounting to about £500, which the pursuers alleged to be due to them by the defender as his shares of debts incurred in connection with the management of said steamship.
The defender in answer denied liability for the greater part of the sum sued for, and parties were allowed a proof of their averments, the diet being fixed for 18th February 1892.
On 18th February the diet of proof was discharged on the motion of the pursuers, and in respect it was stated that the defender desired to amend his record.
The defender thereafter proposed to make extensive amendments on his defences. In the proposed amendments he denied the pursuers' title to sue as managing owners of the “Telephone” on various grounds, and, inter alia, averred that the title which the pursuers had produced under a diligence consisted of three bills of sale of 13/64ths, 14/64ths, and 13/64 shares in said ship, which were granted in favour of James, William, and Alexander Duthie respectively, who were the individual partners of the firm of Duthie Brothers & Company, and conveyed no right or title in said shares to the pursuers Duthie Brothers & Company.
On 16th March the Lord Ordinary (
The defender did not ask for leave to reclaim against this interlocutor, but put his proposed amendments on record and authenticated them.
A minute was thereafter lodged for James Duthie, William Duthie, and Alexander Duthie, partners of the firm of Duthie Brothers & Company, as such partners, and as individuals, craving the Lord Ordinary to sist them as pursuers.
On 17th May the Lord Ordinary pronounced this interlocutor:—“The Lord Ordinary, in respect of minute 90 of process, sists the minuters in terms thereof: Allows the pursuers to answer the defender's amendments, and the same having been done, of new closes the record on the summons and defences, Nos. 1 and 5 of process, and appoints the cause to be put to the Procedure Roll: Grants leave to reclaim.”
The defender reclaimed, and argued—The Lord Ordinary had gone beyond the powers vested in him by the 29th section of the Court of Session Act in making the defender's amendment conditional on the pursuers' being entitled to alter the instance of their summons by having the individual partners of their firm sisted. When a pursuer came into Court in one capacity, he could not alter or add to it without the defender's consent— Hislop v. Macritchie's Trustees, June 23, 1881, 8 R. (H. of L.) 95 ( per Lord Watson, 106); Turnbull v. Veitch, July 18, 1889, 16 R. 1079. The defender was not debarred from objecting to this condition by the fact that he had put his amendments on record, for the interlocutor imposing the condition could not be reclaimed against without leave, and the mere omission to ask for leave to reclaim could scarcely be held to exclude him from subsequently bringing the Lord Ordinary's interlocutor under review.
Argued for the pursuers—The defender was barred from now objecting to the conditions on which his amendments were allowed, inasmuch as he had impliedly consented to the conditions by putting his amendments on record. Further, the condition
Page: 809↓
At advising—
I agree with your Lordships that as the defender has made the amendments under the conditions imposed by the Lord Ordinary, it is no longer in his power to reclaim against the interlocutor authorising him so to amend.
The Court adhered.
Counsel for Pursuers— C. S. Dickson— Younger. Agents— J. & J. Ross. W.S.
Counsel for Defender— Asher, Q.C.— J. A. Reid. Agents— Morton, Smart, & Macdonald, W.S.