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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bartolomeo v. Morrison and Milne, et e contra [1866] ScotLR 2_100 (22 June 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0100.html Cite as: [1866] SLR 2_100, [1866] ScotLR 2_100 |
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Page: 100↓
An amendment of a summons raised as a supplementary one, having for its object the conversion of the summons into a substantive one, disallowed
Page: 101↓
On 17th January 1866 a collision took place between the schooner “Scotia,” of Aberdeen, and the barque “Ghilino,” of Genoa, by which both vessels were injured. On 26th January an action of damages for the sum of £1000 was raised by George Morrison and John Milne, merchants in Aberdeen, the owners of the “Scotia,” against Francesco Massa, master of the “Ghilino,” then lying in the harbour of Leith, as “master, and also as owner or part owner of said ship, and in these capacities, or one or other of them, or otherwise representing the said ship.” Jurisdiction was alleged to have been founded against Massa by arresting the “Ghilino.” To this action the defender pleaded no jurisdiction. Thereafter, on 27th January, Guiseppe Ghilino di Bartolomeo, shipowner, Genoa, the owner of the “Ghilino,” and Francesco Massa, “as master, and representing the owner of said vessel,” raised a cross action against Morrison & Milne, the owners, and Alexander Nicholson, the master of the “Scotia,” concluding for £200 as damages for injury occasioned to the “Ghilino” by the collision. On 1st February 1866 the owners of the “Scotia,” in order to preclude the possibility of the original action against Massa being cast on the plea of no jurisdiction, raised a supplementary action against Bartolomeo as owner of the “Ghilino.” The summons concluded for conjunction of this supplementary action with the summons in the original action against Massa; and the conclusion thus proceeded:—“And the said cases being so conjoined, the defenders and the said Guiseppe Ghilino di Bartolomeo ought and should be decerned and ordained, in terms of the foresaid summons at the instance of the pursuers against the said Francesco Massa, by decree of the Lords of our Council and Session, to make payment to the pursuers of the sum of £1000 sterling, or such other sum as, in the process to follow in the said conjoined actions, shall be ascertained to be the loss and damage due to the pursuers in the premises, with interest at the rate of 5 per cent. per annum from the date of citation in the action against the said Francesco Massa until paid.” When the case was called in Court the pursuers (Morrison & Milne) lodged a minute craving leave to amend their supplementary summons as follows:—“In the first place, immediately after the words, ‘the said cases being so conjoined,’ to introduce the following words, viz.—‘or whether they shall be conjoined or not.’ In the second place, to delete the words, ‘in the process to follow in the said conjoined actions.’”
On 23d May 1866 the Lord Ordinary (Kinloch) pronounced the following interlocutor:—“The Lord Ordinary having heard parties' procurators, sustains the minute of amendment of the libel, No. 14 of process, on payment by the pursuers to the defender of £2, 2s. of expenses: closes the record upon the revised condescendence and revised defences, Nos. 9 and 11, and minute of amendment of the libel, No. 14 of process: conjoins with this process a relative process between the same parties, also in this day's roll: Further, appoints the parties to lodge in the conjoined actions issues within eight days.”
The process with which this was conjoined was that raised by Bartolomeo and Massa against the owner and master of the “Scotia” on 27th January 1866; and in that action the Lord Ordinary, of same date (23d May 1866), pronounced an interlocutor closing the record on the revised condescendence and revised defences, and conjoining it with the action raised on 1st February 1866.
Bartolomeo reclaimed against the first interlocutor, and he and Massa against the second.
Asher for the reclaimers (with him Gifford) argued:—(1) The effect of the minute of amendment was to change the character of the action by converting it from a supplementary into a substantive action. A summons might be amended at the discretion of the Court, but the Court had never sanctioned an alteration whose effect was to change the fundamental nature of the action.— Gilchrist v. Anderson, 17th November 1838, 1 D. 37; Blair v. Steele, 1st June 1848, 10 D. 1095. (2) When an action as originally brought is null, no alteration can be allowed to mend its nullity. — Campbell v. Fotheringham, 25th June 1826, 4 S. 766. (3) The Court will not allow an amendment, if the summons though not null, is, as in the present case, in its formal parts irregular and unsatisfactory. Henderson v. Earl of Minto, 1st June 1860, 22 D. 1126.
Millar (with him the Solicitor-General) answered:—This amendment was required by the exigencies of the case. If the action against Massa was thrown out of Court, the owners of the “Scotia” would have nobody to go against for the injury sustained by their vessel. The amendment did not change the nature of the action, and introduced no new ground of action. It still remained an action of damages. All that it did was to entitle the owners of the “Scotia” to proceed against Bartolomeo if they failed in being allowed to go against Massa as representing him. The action did not cease to be supplementary by the amendment.
The Lord President—This summons is certainly very peculiar. It was framed as a supplementary summons, and intended to call into the field another party in addition to the party already in the field, and it was intended that this summons should be conjoined with that against the other party already in the field. It has this peculiarity, that it calls upon a party to come into Court to have judgment pronounced against him for £1000, in terms of the conclusions of a summons in another action raised against somebody else, and it does not tell what the conclusions of that other action are. But it was plainly intended to be supplementary to that other action. We were told that the pursuers had found that objections were stated to the other summons, and fearing there might be a casting of that summons, they wished this amendment to convert the summons into a substantive one still retaining the peculiarity to which I have alluded. The Lord Ordinary has sustained the amendment. I really cannot see that that was a proper thing to do, and I am for recalling that part of the Lord Ordinary's interlocutor. It may be that this action, though not amended, may yet be sustained as a supplementary action, if the objection to the want of jurisdiction is finally repelled. It will be competent to do that, although this amendment is not allowed. In the meantime, we must recal that part of the Lord Ordinary's interlocutor absolutely. Then, as to the conjunction of these processes with that at the instance of Bartolomeo and Massa, I think that is premature at this stage, and I am disposed to recal this part of the interlocutor in hoc statu.
The other Judges concurred.
The interlocutors reclaimed against were accordingly recalled, and the cases remitted back to the Lord Ordinary.
Solicitors: Agents for Bartolomeo and Massa—Murdoch, Boyd, & Henderson, W.S.
Agent for Morrison and Milne—John Henry, S.S.C.
