The Govan Old Victualling Society, Ltd v. Wagstaff [1907] ScotLR 44_295 (11 January 1907)

The Govan Old Victualling Society, Ltd v. Wagstaff [1907] ScotLR 44_295 (11 January 1907)

A conclusion for count and reckoning is incompetent against a manager/treasurer who keeps the society's books, but the alternative petitory conclusion for payment based on alleged misappropriation is sufficiently relevant to warrant inquiry. Dismissal in the Sheriff Court on relevancy does not constitute res judicata for the present action.

Citation
[1907] ScotLR 44_295
Parties
Pursuer: The Govan Old Victualling Society, Limited; Defender: Archibald Wagstaff
Jurisdiction
Scotland
Judgment Date
11 January 1907
Procedural Posture
Civil / Reclaiming Note (appeal) Against Interlocutor Dismissing Action
Outcome
Interlocutor of dismissal recalled; amendments allowed; proof of averments ordered; expenses reserved.
Legal Topics
Count and Reckoning, Res Judicata, Misappropriation, Specification of Pleadings, Friendly Societies
Civil Procedure Commercial Law Employment Law Count and Reckoning Res Judicata Misappropriation Specification of Pleadings Friendly Societies

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Parties

The Govan Old Victualling Society, Limited

Pursuer

Archibald Wagstaff

Defender

Procedural Posture

Civil / Reclaiming Note (appeal) Against Interlocutor Dismissing Action

Legal Issues

  1. 1 Is a conclusion for count and reckoning competent against a manager/treasurer who keeps books belonging to the society?
  2. 2 Does dismissal of an action in the Sheriff Court on relevancy constitute res judicata for a subsequent action in the Court of Session?
  3. 3 Are the pursuers' averments sufficiently specified to warrant inquiry into alleged misappropriation?

Ratio Decidendi

A conclusion for count and reckoning is incompetent against a manager/treasurer who keeps the society's books, but the alternative petitory conclusion for payment based on alleged misappropriation is sufficiently relevant to warrant inquiry. Dismissal in the Sheriff Court on relevancy does not constitute res judicata for the present action.

Court Disposition

Interlocutor of dismissal recalled; amendments allowed; proof of averments ordered; expenses reserved.

Orders

  • Recal Lord Johnston's interlocutor of 2 April 1906.
  • Open up the record and allow amendments for both parties.