Scottish Court of Session Decisions

David Allan Hay, C.A., Glasgow, trustee on the sequestrated estate of Mrs Flora Graham Ritchie or Sharp, sole trustee of her deceased husband William Sharp, wine and spirit merchant, Glasgow, pursuer, brought an action against J. Y. Paterson & Company, Limited, brewers, Edinburgh, and others, defenders, for ( first) reduction of a certain transaction whereby Mrs Sharp sold and transferred the licensed business, the only asset of the trust estate, to her son David Sharp for the sum of £2438 odd, that sum being provided by the defenders in return for bills granted by David Sharp, and ( second) for repayment of the said sum which had been handed over by her to the defenders in discharge of their claims.

The defenders pleaded, inter alia—“(4) The transaction complained of having been entered into by the defenders in bona fide, and in the ordinary course of business, they should be assoilzied.”

A proof was led.

On 7th March 1912, the last day of the proof, the Lord Ordinary (Cullen) opened up the record and allowed the pursuer to amend by adding to the summons certain alternative conclusions and by making certain additions to the condescendence.

Thereafter on 25th April 1912 his Lordship granted decree for repayment of the price, and found it unnecessary to dispose of the remaining conclusions of the summons. In a note his Lordship stated—“… The pursuer has a series of declaratory conclusions by way of an avenue to his petitory conclusions. It was conceded that they are of no practical utility if the pursuer obtains a petitory decree. Following the views which I have expressed, I shall grant decree against the defenders respectively for the sums paid to them by Mrs Sharp out of the price of the business which she received from her son; and on this footing I think it unnecessary to deal with the other conclusions.”

The defenders reclaimed, but in boxing

Page: 743↓

the case to the Inner House printed the record as it originally stood, i.e., without the amendments.

On the case appearing in the Single Bills counsel for the pursuer objected to the competency of the reclaiming note, on the ground that the amendments allowed in the Outer House had not been printed.

Argued for pursuer—The provisions of the Act of Parliament and of the Act of Sederunt were imperative— Williamson v. Howard, May 18, 1899, 1 F. 864, 36 S. L.R. 645. The note was therefore incompetent.

Argued for defenders— Esto that the amendments were on the record when the reclaiming note was taken, they were the pursuer's own amendments, and he was therefore fully aware of them. That being so, the objection was purely technical. The omission to print them was excusable, for they had only been put on on the last day of the proof. The case was then taken to avizandum, and judgment was pronounced in vacation. The rule laid down in Williamson ( cit.) had been departed from in the later cases of Burroughes & Watts, Limited v. Watson, 1910 S.C. 727, 47 S.L.R. 638, and Henderson v. D. & W. Henderson, 1912 S.C. 171, 49 S.L.R. 101, for these cases decided that section 18 of the Judicature Act was not imperative but directory. That being so, the Court had power—where, as here, the omission to print was excusable—to allow the reclaiming note to be received.