Bank of Scotland v W. & G. Fergusson
| Jurisdiction | Scotland |
| Judgment Date | 24 November 1898 |
| Docket Number | No. 20. |
| Date | 24 November 1898 |
| Court | Court of Session |
Ld. Stormonth-Darling, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Process—Form of Summons—Amendment—Bill of Exchange—Sexennial Prescription—Court of Session Act, 1850 (13 and 14 Vict. cap. 36), sec. 1—Schedule (A) No. 1—Act of Sederunt 31st Oct. 1850—Court of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 29.—
In an action for payment of the contents of a bill, the bill was set forth in the condescendence, but was not set forth in the conclusions of the summons as required by the Court of Session Act, 1850, sec. 1, schedule A, and the A. S. 31st October 1850.
Held (1) that the summons as laid was not in competent form, but that the defect could be cured by amendment; (2) that the action, having been from the first laid upon the bill, operated from the date of service an interruption of the sexennial prescription.
On 8th February 1898 the Bank of Scotland raised an action against Messrs W. & G. Fergusson for payment of £693, 11s. 9d., with interest from 28th February 1892.
In their condescendence the pursuers averred that the sum sued for was the amount of a bill, dated 25th January 1892, payable one month after date, drawn by the defenders upon and accepted by James M. Fergusson, publisher, Ayr, payable to them or their order, indorsed by the drawers for value in favour of the pursuers, presented by them for payment in due course, and protested for non-payment.
The record was closed on 11th March 1898.
The defenders pleaded, inter alia,—(1) The action is incompetent, and ought to be dismissed; (7) the said bill has undergone prescription, and cannot now be founded on.
After the record was closed the pursuers, on 1st June, moved the Lord Ordinary for leave to amend the summons by inserting in the conclusions after the principal sum sued for, the words ‘being the amount contained in and due under bill of exchange, dated 25th January 1892, payable one month after date, drawn by the defenders upon and accepted by James M. Fergusson, publisher, Ayr, payable to them or their order.’*
On 18th June 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.’*
On 28th October the Lord Ordinary repelled the 1st and 7th pleas in law for the defenders, and allowed a proof.*
The defenders reclaimed, and argued;—The summons was incompetent in form, as it contained no reference to or description of the bill.1 The Act was imperative.2 To interrupt prescription a competent action was necessary.3 In the authorities the triennial and sexennial prescriptions were classed together, and contrasted with the longer prescriptions. Accordingly, the serving of this action did not constitute an interruption. Consequently, at the date when leave to amend was asked the bill had prescribed, and could not be founded on in action. It followed that the amendment was incompetent, its purpose being to alter the rights of parties by validating an incompetent
action and making it a good judicial demand on the bill, effectual interrupt prescription.1 Even if allowed the amendment could not have such an effect, just as where a pursuer's title was defective at the date when his action was brought, the defect could not be cured by a subsequent assignation.2
Argued for the pursuers;—The provisions of section 1 of the Act of 18503 were purely directory, and left it to the Court by Act of Sederunt to prescribe forms of summonses. The form in Schedule (A) of the Act was not intended to make a radical distinction between actions on liquid documents of debt and other petitory actions.4 Although the summons might not be in proper and regular form, the action was a judicial demand for payment of the bill, for the grounds of action were to be found in the condescendence, which was to be held as part of the summons,3 and reading summons and condescendence together the action was undoubtedly for payment of the bill. The defect in the summons was therefore a mere irregularity. It was indeed only a discrepancy between summons and condescendence, for taken by itself the summons was in quite a regular form, and the argument against the competency of the amendment disallowed by the Lord Ordinary would extend to all discrepancies between the summons and condescendence, and would bar the correction at adjustment of errors in the condescendence, which involved such discrepancies. The object of the amendment was to enable the real question in controversy between the parties to be determined, and it was incumbent on the Court to allow such an amendment.5 The amendment here proposed had been allowed in a previous case.6 The case was quite different from ClarkSC,7 where the amendment would have introduced a new ground of action. In SymingtonSC8 the pursuer had no title at the date when the action was raised. Here the pursuer had a good claim on the bill at that date. The provision in section 29 of the Court of Session Act, 1868, as to diligence, shewed that amendments allowed under that section were to be retroactive as regarded the defender. The irregularity in the summons being capable of cure by amendment, the action was a good judicial demand for payment of the bill, effectual to interrupt prescription. None of the cases founded on by the defenders and the Lord Ordinary were in point. In Gordon9 there was no judicial demand on the bill, the precept as served containing no reference to it. In Baillie10 and Campbell11 there was no proper citation. In M'Laren12 the action was brought before an incompetent Court. Campbell,11M'Laren,12
CochranUNK,1GobbiUNK,2 and DunnUNK,3 were all actions in which the triennial prescription was the defence, and to interrupt that prescription it was necessary that an action raised within the three years should be carried to judgment. That rule did not apply to the sexennial prescription.
Lord President.—It does not admit of doubt that this summons as it came into Court was not in proper form. The Act of Parliament of 1850, read along with the Act of Sederunt, directs that any action on a liquid document of debt shall contain a mention of that document within the writ called the summons. Accordingly, the summons as it stands now is not in competent form. I use that phrase in order to add that I think that a summons which is not in competent form may be described, as it has been described already in the previous decisions, as incompetent. But then, it is, I think, equally clear, and indeed was conceded, that that is a defect in the summons which is susceptible of amendment and cure under the 29th section of the Court of Session Act, 1868; and accordingly it is not one of those fatal defects which impart nullity to the action, and the action is one which, when put into shape under the...
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