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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mercer v Duncan [1838] CS 16_1048 (26 May 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1048.html Cite as: [1838] CS 16_1048 |
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Page: 1048↓
Subject_Process—
Reclaiming Note.—A summons was raised against several separate defenders, concluding against them respectively as liable, on distinct grounds of action, each for his own distinct debt; the action was dismissed, on preliminary defences, as to one of these defenders, and the pursuer reclaimed; Held, that the Reclaiming Note was competent, although the copy of the summons, as printed and appended to it, omitted every thing which related exclusively to the other separate defenders, and only contained what related to the defender in question.
William Mercer, W.S. raised a summons which embraced several separate defenders, and concluded against them, respectively each for his own separate and distinct debt. Besides other defenders, the action was directed against William Duncan, stockingmaker, Carluke, and John Neilson, Salisbury Street, Edinburgh, as jointly and severally liable for a business-account of £32, 2s. 5d. Duncan pleaded several preliminary defences, two of which were sustained by the Lord Ordinary, who “dismissed the action quoad the defender Duncan.” Mercer reclaimed, and, in appending copies of the summons and defences to his reclaiming note, he merely printed so much of the summons as related to Duncan, omitting those parts which related exclusively to the other and separate defenders. Duncan objected to the competency of the reclaiming note, that it had not a copy of the summons appended to it, as required by A. S. 11th July, 1828, § 77. Mercer answered that, in a question with Duncan, there was a copy of the summons appended, such as to satisfy every requisite of the A. S.; and that it was as much jus tertii to Duncan,
can, to object that portions of the original writ of summons, relating exclusively to other parties were not appended, as if such portions had all been separate libels in form, as well as in substance, which they might have been. The Court repelled the objection to the competency of the reclaiming note.
Solicitors: W. Mercer, W.S.— D. Fisher, S.S. C.—Agents.
