THE INDEPENDENT WEST-MIDDLESEX ASSURANCE COMPANY v WILLIAM CLEUGH (Court of Session)

The Independent West-Middlesex Assurance Company, and certain individuals named, being ‘three of the managers and individual partners of the said company suing for, and for behoof of the said company, and John Maben, accountant in Edinburgh, their mandatary,’ raised an action of damages against Cleugh, agent in Glasgow for the County Fire and Provident Life Assurance Companies of London, for alleged defamation, as having, on various occasions libelled, represented the pursuers as a fictitious company, and their directors as unworthy of credit or respect, &c.

Cleugh reclaimed , praying the Court ‘to find that the pursuers have produced no sufficient title to sue in the said action for behoof of the said company, or pretended company, in whose name the same is brought; and to dismiss the same with expenses.’

Note .—‘The objection was formerly argued before the Lord Ordinary as an objection to title alone ; but in the Inner-House it seems to have been chiefly rested upon the act of Parliament requiring all pursuers to produce, with their summons, any writings in their possession on which they have there founded; and it appears to have been principally with reference to this second point that the case has been remitted. Both objections may be available at this stage to the defender; but they are plainly quite separate objections, and must be separately considered.

Lord President .—I am of the same opinion. The question at present before us, is not whether these individuals have a right to pursue, but whether they have brought this action under the deeds, and if they must produce the title on which they found. I think they found upon and must be ordained to produce the deeds of contract and settlement. If I bring an action against another as assignee, conform to assignation of such a date, I must surely produce the assignation as the ground of my title, if called for by the defender.

Lord Fullerton .—I think the pursuers are bound to produce the contracts referred to in the summons. Even according to the qualification assumed by the Lord Ordinary, this seems to follow; for these writings are essential to their title. Pursuing as they do, as managers for, and for behoof of the company, these contracts are indispensable, in order to show that a body of managers, with a delegated power to sue, is a part of the constitution of the company.