Reilly v. Smith [1904] ScotLR 41_516 (24 May 1904)

Reilly v. Smith [1904] ScotLR 41_516 (24 May 1904)

Where the pleadings disclose no relevant case against one defender, but do disclose a relevant case against another, the action may competently proceed against the latter alone, and should be dismissed against the former.

Citation
[1904] ScotLR 41_516
Parties
Pursuer and Appellant: William Reilly (as tutor and administrator-in-law of William Reilly junior); Defender and Respondent: William Smith; Defender (no Relevant Case Found): John Simson Buchan
Jurisdiction
Scotland
Judgment Date
24 May 1904
Procedural Posture
Civil Action for Damages (reparation) / Appeal From Sheriff Court Interlocutor; Remit for Proof Before Answer
Outcome
Action dismissed against Buchan; action to proceed against Smith; case remitted for proof before answer.
Legal Topics
Competency of Action Against Multiple Defenders, Joint and Several Liability, Pleading Requirements, Dismissal of Action Against One Defender
Civil Procedure Delict (tort) Competency of Action Against Multiple Defenders Joint and Several Liability Pleading Requirements Dismissal of Action Against One Defender

Case Brief

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Parties

William Reilly (as tutor and administrator-in-law of William Reilly junior)

Pursuer and Appellant

William Smith

Defender and Respondent

John Simson Buchan

Defender (no Relevant Case Found)

Procedural Posture

Civil Action for Damages (reparation) / Appeal From Sheriff Court Interlocutor; Remit for Proof Before Answer

Legal Issues

  1. 1 Whether an action can proceed against one defender when no relevant case is pled against the other, in a claim for damages based on negligence
  2. 2 Whether the form of the conclusion (jointly, jointly and severally, or otherwise) affects competency to proceed against one defender

Ratio Decidendi

Where the pleadings disclose no relevant case against one defender, but do disclose a relevant case against another, the action may competently proceed against the latter alone, and should be dismissed against the former.

Court Disposition

Action dismissed against Buchan; action to proceed against Smith; case remitted for proof before answer.

Orders

  • Dismissal of action against John Simson Buchan
  • Remit to Sheriff-Substitute to assign a diet of proof and proceed against William Smith