Scottish Court of Session Decisions

Lord President—The first question is whether section 4 of the Distribution of Business Act 1857 applies to this petition, and I consider that it does. That section declares that “all summary petitions and applications to the Lords of Council and Session which are not incident to actions or cases actually depending at the time of presenting the same, shall be brought before the Junior Lord Ordinary officiating in the Outer House,” and in particular the petitions and applications therein mentioned, including petitions and applications for the appointment of judicial factors. This petition is summary in form; it prays to have it found that the partnership to which it relates is dissolved, and asks for decree of dissolution, and it also prays for the appointment of a judicial factor on the estate of the partnership, with certain specified powers. The petition is no doubt in part founded on section 35 of the Partnership Act 1890, which authorises the Court to decree a dissolution of partnership in certain cases, “on application by a partner.” As this section applies to Scotland as well as to England, the term “application” may be held to include any competent proceeding for attaining that object in Scotland, and prior to 1890 this Court repeatedly entertained petitions presented to the Junior Lord Ordinary for dissolution of partnerships and the appointment of judicial factors. I do not say that in all, or probably in most, cases under section 35 of the Act of 1890, such a petition would be the appropriate, or even a competent, proceeding; on the contrary, it appears to me that an action of declarator would be the proper form wherever the parties are at variance with respect to matters requiring investigation or inquiry; but having regard to the practice which has prevailed both prior and subsequent to the passing of the Act of 1890, I do not think it should now be held that the procedure by summary petition in suitable cases is incompetent, provided that the petition is presented to the Junior Lord Ordinary. There is, however, no authority for presenting such a petition to any other Lord Ordinary, and as this petition was presented to a Lord Ordinary who was not the Junior Lord Ordinary, I consider that it is incompetent. No objection on this ground appears to have been stated by the respondent, but when it is pleaded by the petitioner that we cannot recal an interlocutor of which we disapprove because of restriction against reclaiming contained in the Act of 1857, or in any other Act, it appears to me that we are not only entitled but bound to consider the competency of the proceeding ab initio, and as the present petition seems to me to be incompetent for the reason which I have just stated I think we should recal the whole interlocutors which have been pronounced in it and dismiss it as incompetent.

Lord M'Laren—I am of the same opinion. As your Lordship has observed, while the Partnership Act provides that decree of dissolution of a partnership may be pronounced in an application to “the Court,” which includes the Court of Session, nothing is said as to the procedure to be adopted, and it is not, in my opinion, to be assumed that in every case it is competent to apply for a dissolution of partnership by petition to the Junior Lord Ordinary. When the facts on which dissolution is sought are capable of instant verification, as for example, where a partner has been sequestrated, or when the deed of partnership limits the duration of the partnership to the period of the partners' lives and there is evidence of the death of one of the partners, when in fact the evidence pointing to the remedy of dissolution is indisputable, I should say it was convenient and not incompetent to combine a prayer to this effect with a petition for the appointment of a judicial factor to wind up the business of the copartnery. But if the partnership is in existence and its business is prosperous, and there is no apparent cause for a dissolution except a desire on the part of one of the partners to get rid of a copartner, to say that a dissolution of partnership could be obtained by means of a summary petition, and on the report of an accountant from whose conclusions there is practically no appeal, would be to sanction a procedure so monstrous that I do not think a parallel to it could be found in any legal system that I know of. We know that the Distribution of Business Act allows no appeal at any stage of the case from interlocutors regulating the mode of inquiry, and the whole of this code of procedure is adapted to the administrative as distinguished from the contentious business of the Court. While I do not wish to say anything tending to exclude the summary jurisdiction of the Lord Ordinary in a plain case, I may say that where there is a dispute between the parties to a contract of copartnery as to the necessity for dissolution, it is according to all the traditions of our practice that it should be decided in an ordinary action where there is an opportunity of appealing on the relevancy or as to the form in which a proof is to be taken.

Lord Kinnear—I am of the same opinion. I also agree with Lord M'Laren that it does not follow from what has been said, or from what we propose to do, that every proceeding for obtaining a decree of dissolution of partnership can be conveniently or competently carried out by way of a summary petition. As his Lordship pointed out, there may be circumstances which would make that an inconvenient if not an incompetent process. However, without considering the merits of the present case we must treat it as what it purports to be, to wit, a summary petition presented in the Outer House, and treating it as such, I agree with your Lordship that it is incompetent, inasmuch as it falls within the provisions of the Distribution of Business Act, and ought accordingly to

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