EDWARD SHERMAN & Ors and Mandatary v JOHN BAIN (Court of Session)

The whole contractors, (with the exception of four who were parties to the Scotch contract,) being interested to the extent of the shares exhibited in that settlement, brought the present action of count and reckoning against the defender, to have him ordained to produce a true account of charge and discharge, and to make payment to them of the balance due, with interest from 5th April 1834.

The Lord Ordinary (7th December 1838) pronounced the following interlocutor: ‘The Lord Ordinary having heard parties' procurators, in respect that all parties interested are not called in this action, sists process till the proper steps are taken for making the other coach proprietors named in the summons parties to this action; finds the defender entitled to the expenses incurred in discussing this preliminary plea, allows an account thereof to be given in, and remits to the Auditor to tax the same, and to report.’

The defender answered —The simple question is, can one partner bring an action without the aid of the other partners against the propositus and manager of the company? The funds in his hands are company funds, and in their division, which is an action de communi dividendo, all parties interested must be called; May v. Mathews, Jan. 24. 1833, S. D. & B. xi. 305; Caven v. Mackie, May 18. 1832, S. D. & B. x. 550.

Lord Gillies .—I should just like to ask Mr Ivory one question. There are here four or five individuals who owe the pursuers nothing, and the pursuers owe them nothing; where, therefore, is the reason for calling them? And suppose you were to raise a summons against them, what sort of conclusion would you insert in it that could be directed against them?

Lord President .—It is clear they have no interest, as there is no claim either for or against them one way or another. They are neither the debtors nor the creditors of the pursuers.