Scottish Court of Session Decisions

The Bank of Scotland on 8th February 1898 raised an action against W. & G. Ferguson, Ayr, of which the conclusion was that the defenders should be ordained “to make payment to the pursuers of the sum of £693, 11s. 9d. sterling, with interest thereon at the rate of 5 per centum per annum from the 28th day of February 1892 until payment.”

In their condescendence the pursuers averred (Art. 1) that on 25th January 1892 the firm of which the defenders were the sole partners “drew a bill for the amount of £693, 11s. 9d., payable to them on their order one month after date, upon James M. Ferguson, publisher, Ayr, who accepted said bill. The bill was indorsed for value by the said firm in favour of the pursuers, and was presented by them for payment in due course, and protested for non-payment.” The pursuers further averred — (Cond. 4) “The principal sum now sued for is the amount contained in the bill.”

The defenders pleaded, inter alia—“(1) The action is incompetent and ought to be dismissed. (3) The pursuers' statements are irrelevant. (7) The said bill has undergone prescription and cannot now be founded on.”

The record was closed on 11th March 1898, and on 1st June the pursuers moved for leave to amend the summons by inserting therein after the principal sum sued for the words “which is the sum contained in and due under a bill of exchange dated 25th January 1892, payable one month after date, drawn by the defenders upon and accepted by James M. Ferguson, publisher, Ayr, payable to them or their order.”

The Court of Session Act 1850 (13 and 14 Vict. c. 36), sec. 1, enacts that “the pursuer of any summons before the Court of Session shall set forth in such summons in such way and manner as the Court, having regard to the forms set forth in Schedule (A) hereunto annexed, may from time to time prescribe by Act of Sederunt as applicable to the various forms of action now in use, the name and designation of such pursuer, and the name and designation of the defender, and the conclusions of the action, without any statement whatever of the grounds of action, but the allegations in fact which form the grounds of action shall be set forth in an articulate condescendence, together with a note of the pursuer's pleas-in-law, which condescendence and pleas-in-law shall be annexed to such summons, and shall be held to constitute part thereof.” Schedule (A) annexed to the said statute gives, inter alia, a form of an ordinary petitory summons, in which, after the words “decerned and ordained … to make payment to the pursuers of the sum of sterling,” occurs the following direction—[ Where any liquid document of debt is libelled on, whether bond, bill, or other document, as the case may be, set it forth here, as shortly as possible, describing it merely by its date, and the names of the parties by and to whom granted].

The A.S. of 31st October 1851, section 1, enacts that “all summonses shall be framed in the manner and according to the directions contained in the first section of the above-mentioned statute (viz., the Act of 1850), and in the form of Schedule (A) thereunto annexed.”

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 29, empowers the Court or the Lord Ordinary to “amend any error or default in the record or issues in any action or proceeding in the Court of Session … 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.”

On the 11th June 1898 the Lord Ordinary ( Stormonth Darling) refused the motion for leave to amend, “in respect that the bill in question suffered prescription after the date of raising the action and before the date when the motion was made.”

Opinion.—“The amendment here proposed is of a kind which has on several occasions been allowed under section 29 of the Court of Session Act. But the defenders oppose it under circumstances which are very exceptional. The action was raised on 8th February 1898, and although the condescendence plainly showed that it was laid upon a bill of exchange, the summons contained no reference to the bill. The years of prescription ran out on 28th February 1898, the record was closed on 11th March, and the motion for leave to amend was made on 1st June. In these circumstances the defenders oppose the amendment, on the ground that its purpose is to deprive them of their defence on the sexennial prescription.

“Now, there is no doubt that that is the purpose, and the sole purpose, of the amendment. The pursuers do not admit—and at this stage I do not decide—that the action as it stands (taking summons and condescendence together) is a bad action on the bill. It is, no doubt, a highly technical rule of pleading that requires any liquid document of debt, such as a bond or bill, to be set forth in the summons, and it is difficult to see any good reason for it. But the rule is statutory under Schedule A of the Procedure Act of 1850, and there are dicta of weight (though I do not know that there is any express decision) to the effect that an action which violates the statutory form is not merely irregular but incompetent as an action on the bill. This, however, as I have said, is not the proper stage for deciding that question. If the action be good notwithstanding this omission, the pursuers do not require the amendment. It is only on the assumption of the action being bad that they ask leave to make it.

“ Section 29 of the Court of Session Act is imperative in requiring all amendments to be made which are ‘necessary for the purpose of determining in the existing action or proceeding the real question in controversy between the parties.’ But the evident purpose of that enactment is to obviate the necessity of abandoning the existing action and raising a new one. If

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the object of the party asking the amendment could be attained by that more expensive mode of procedure, the statute says that the amendment shall be made But in cases where a new action would do him no good, it would, I think, be unjust to the opposite party to allow the amendment.

“Now, that, I think, is the case here. If the pursuers were to abandon the present action and raise a new one, they would, of course, be met by the plea of prescription. They might then reply that the plea was obviated by their having raised a former action (viz., the present one) before the expiry of the six years; and it is no doubt settled by a series of cases that a bill is saved from prescription by any kind of judicial demand for the amount contained in it having been made within the six years, although the demand may have been in a different process from that in which the plea of prescription is stated. But in order to have that effect, the process (as explained by Lord Rutherfurd in Dunn v. Lamb, 10 D., at p. 995) must be a competent one, in which the creditor might have succeeded. Therefore the raising of an incompetent action ( Cochran, 4 D. 76, or of a competent action which is subsequently abandoned ( Gobbi, 21 D. 861), has no effect in interrupting prescription. Similarly, it was held in Paul v. Inglis & Company, 2 S. 533 or 628, that an amendment could not be admitted so as to validate an irrelevant penal action after the statutory period for raising a new action had expired. This, no doubt, was before the Act of 1868, but the decision proceeded on a general principle which is equally applicable now. It was, I take it, on the same principle that in Clark v. Adams, 12 R. 1092, the Court refused to allow a common law action to be converted into an action under the Employers Liability Act after the lapse of the six months allowed by that statute for raising actions. The rule is founded on plain considerations of fair play, and it is followed in England as well as here. In Weldon v. Neal, 19 Q.B. D. 394, Lord Esher thus expressed it—‘If an amendment were allowed setting up a cause of action which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitations, it would he allowing the plaintiff to take advantage of her former writ to defeat the statute, and taking away an existing right from the defendant, a proceeding which as a general rule would be in my opinion improper and unjust.’

“My refusal of the amendment not only leaves open the question whether, on the summons as it stands, the pursuers can found on the bill as evidence of the debt, but it also, of course, leaves untouched the pursuers' case on the debt as distinguished from the bill.”

On 28th October 1898 the Lord Ordinary repelled the first, third, and seventh pleas-in-law for the defenders, and allowed the parties a proof of their averments.

Opinion.—“On 18th June I refused leave to amend the summons by inserting therein a reference to the bill, on the ground that such amendment might prejudice the defenders' plea of prescription. In doing so I expressly reserved the question whether the action without amendment was altogether incompetent, or merely irregular, as an action on the bill. I think now it would have been better if I had disposed of that question first, because if the action as it stood was not incompetent the proposed amendment would have been harmless.

“I have now heard an argument on the question of incompetency. The defender says that the combined effect of Schedule A appended to the Act 13 and 14 Vict. cap. 36, and sec. 1 of the A. S. of 31st October 1850, is to make the action so entirely incompetent that the raising of it had no effect in eliding prescription, and that my duty now is to dismiss it. I cannot go so far as that. If the remedy of amendment were still open, everybody would agree that the summons ought to be brought into conformity with the style prescribed by statute for cases where ‘any liquid document of debt is libelled on.’ The omission of all reference to the bill in the summons was plainly a mistake, though one purely of form, for the condescendence made it quite clear that the action was laid on the bill. But when the defender contends that the mistake was so fatal as to make the summons practically a piece of waste paper, it becomes necessary to inquire whether the statute declares or implies a penalty so rigorous.

“The section which refers to Schedule A is section 1, and its leading purpose is to discard from the summons all the narrative which used to encumber it, and to direct that the pursuer shall set forth the conclusions ‘without any statement whatever of the grounds of action,’ these being relegated to the condescendence and pleas-in-law, which, the section goes on to say, “shall be annexed to such summons, and shall be held to constitute part thereof.” The tendency of all this is to exclude as much matter as possible from the summons. Then comes the schedule, which contains the directory words on which the defender founds. Be it observed, that the Legislature is not dealing with the form of a writ which is to afford permanent evidence of title, but with a step of process in a court of law which may be altered from time to time by the Court itself. I do not mean that such a form ought not to be followed, but that the penalty of not following it ought to be something less than the absolute nullity of the whole proceeding.

Now, that is the length to which the defender carries it. lie says — ‘Because you have not referred to the bill in your summons, you have not commenced an action on the bill within the sexennium, and the bill is therefore prescribed.’ But ‘commencing action’ on a bill has been liberally construed by decision. It has been made to cover judicial demands which are not strictly actions commenced by the creditor, such as claims in a multiplepoinding, and claims stated by way of compensation in defence. These of course admit of statement without any prescribed form,

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and it would be rather singular if such equipollents of action were found to present fewer pitfalls to the creditor than action itself.

Probably the point is not of general importance, for I can hardly suppose that the combination of circumstances which make the difficulty here is likely often to occur. But, as between the present parties, I think the just course is to repel the 1st, 3rd, and 7th pleas for the defender, and to allow a proof.”

The defenders reclaimed, and argued—This was an incompetent action, inasmuch as the pursuers had not followed the prescribed statutory form in their summons. The provisions of the Act of 1850 and the consequent Act of Sederunt were imperative. The action was laid on the bill, but the bill had not been set forth in the summons— Davis v. Cadman, January 13, 1897, 31 R. 297; Crazier v. Macfarlane &Co., June 15, 1878 5 R. 030; National Bank of Scotland v. Williamson & Sons, April 8, 1886, 23 S.L.R. 612; Johnston v. Pettigrew, June 16, 1863, 3 Macph. 954. The amendment proposed could have no retroactive effect to validate the action as originally framed— Symington v. Campbell, January 30, 1894, 21 R. 434, But if the action were radically incompetent, it could not interrupt the currency of the sexennial prescription on the bill, and after the 28th February the bill was prescribed, failing any effectual interruption — Bell, Comm, i., 419; Bell Lectures, i. 509; Gordon v. Bogle, 1784, M. 7532; Baillie v. Doig, 1790, M. 11,280; Campbells v. Macneil, 1799, M. 11,120; M'Laren v. Buik, February 27, 1829, 7 S.483; Cochran v. Prentice, November 24, 1841, 4 D. 76; Bunn v. Lamb, June 14, 1854, 16 D. 944. To allow the amendment would therefore he to raise up a new action which would date back to the signeting of the original summons, and which would deprive the defenders of the plea of prescription otherwise open to them.

Argued for the pursuers—This was the very class of case which sec. 29 of the Act of 1868 was designed to meet. The action here plainly constituted a good judicial demand on a bill, for though the bill was not set forth in the summons proper, it was clearly founded upon in the condescendence, which, according to the statute of 1850, formed part of the summons. The strict form of the schedule, it was true, had not been adhered to; but those schedules had never been rigorously interpreted— Green v. Shepheard, July 4, 1866, 4 Macph. 1028, per L.J.-C. Inglis, 1030. At the most there was an irregularity here, which the Court was not only empowered but bound to remedy under sec. 29 of the 1808 Act— Carruthers v. Cairns, May 16, 1890, 17 R. 769; Guiness, Mahon, & Co. v. Coats Iron and Steel Co., January 21, 1891, 18 R. 441. A similar amendment had been allowed without question in the case of Milne's Trustees v. Ormiston's Trustees, March 14, 1893, 20 R. 523.