Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 FORM OF PROCESS.

M'Cash
v.
Aird

Date: 6 March 1776

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In a cause depending before Lord Justice-Clerk, his Lordship, 23d February 1776, pronounced decreet, assoilyieing the defender. The pursuer drew a representation; but, before presenting it, the Ordinary went to England. Afterwards, the pursuer brought his representation to the clerk of the process; who, telling him that the Ordinary was gone, refused to receive it, as there was no possibility to have a signature note upon it; but the agent threw it down upon the table and left it, (6th March 1776.) The affair lay over till the Session rose, and then the defender extracted his decreet, and took no notice of the representation.

Next Session the pursuer gave in a petition and complaint, praying service on the party, his agent, and extractor, and to have the decreet recalled, as premature and irregular.

In this petition, it was said, that there were three ways in which a representation may be presented, viz. either to the Ordinary, or to the Ordinary's clerk, or to the clerk of the process. These it was said are equally regular, and perhaps the last the most regular of the three.

In June 1771, in the case Drummond of Lundin against Coventry, a representation had been lodged with the clerk; but he had neglected to mark the date of presenting. Two questions therefore occurred,—First, Whether it was regular, at all, to lodge a representation with the clerk of the process, or if it ought to have been lodged with the Ordinary or his clerk. Secondly, If parole evidence could be received to prove that a representation was given in within the days, when no marking was upon it.

No decision however was given upon either of these points, because, the process being a process of count and reckoning, it was thought that accounts might be given in at any time, without regard to the reclaiming days.

As to parole evidence, the point occurred anno 1770, in a case, Earl of Findlater against Gordon of Park.

As to the present case, the Lords were of opinion, that, in the absence of the Ordinary, the application ought to have been made to the Lords in presence, and that the representation was incompetent; so that it was needless to enter into the other points of form; however, they remitted the petition to the Ordinary,—it being understood, all circumstances considered, that, if his interlocutor, 23d February, needed review, he would review it.