Plotzkers v. Lucas [1906] ScotLR 44_245 (21 December 1906)

Plotzkers v. Lucas [1906] ScotLR 44_245 (21 December 1906)

The defect in the instance was cured by amending it to state the complainers were 'carrying on business under the style of Irish Linen Company,' making it clear the action was in respect of partnership rights. The law permits suing in the names of all partners if the partnership capacity is disclosed.

Citation
[1906] ScotLR 44_245
Parties
Complainers/respondents: Marcus Plotzker, William Plotzker, Herman Plotzker, David Plotzker, Bernard Plotzker; Respondent/reclaimer: Hessel Lucas
Jurisdiction
Scotland
Judgment Date
21 December 1906
Procedural Posture
Note of Suspension and Interdict / Inner House Appeal From Lord Ordinary's Interlocutor
Outcome
Amendment allowed; appeal dismissed; Lord Ordinary's interlocutor adhered to and case remitted for further procedure.
Legal Topics
Instance in Pleadings, Partnership Capacity to Sue, Trade Name Protection
Civil Procedure Partnership Law Intellectual Property Instance in Pleadings Partnership Capacity to Sue Trade Name Protection

Case Brief

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Parties

Marcus Plotzker, William Plotzker, Herman Plotzker, David Plotzker, Bernard Plotzker

Complainers/respondents

Hessel Lucas

Respondent/reclaimer

Procedural Posture

Note of Suspension and Interdict / Inner House Appeal From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the instance in the note was defective for failing to disclose the existence of a partnership
  2. 2 Whether a firm may sue in the names of all individual partners without expressly stating partnership capacity
  3. 3 Whether amendment to the instance cures the defect

Ratio Decidendi

The defect in the instance was cured by amending it to state the complainers were 'carrying on business under the style of Irish Linen Company,' making it clear the action was in respect of partnership rights. The law permits suing in the names of all partners if the partnership capacity is disclosed.

Court Disposition

Amendment allowed; appeal dismissed; Lord Ordinary's interlocutor adhered to and case remitted for further procedure.

Orders

  • The complainers are allowed to amend the instance as proposed.
  • The Lord Ordinary's interlocutor is adhered to.