Scottish Court of Session Decisions

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Cite as: [1838] CS 16_1249

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SCOTTISH_Court_of_Session_Shaw

Page: 1249↓

016SS1249

Nelson

v.

Baird
No. 251.

Court of Session

2d Division T.

June 30 1838

Lord Jeffrey, Lord Medwyn, Lords Glenlee, Meadowbank, Lord Justice Clerk.

Janet Nelson, Advocator and Pursuer.— Counsel:
Paterson. M. A. Baird, Respondent and Defender.— Counsel:
M'Neill— Shand.

Subject_Process—Advocation—Final Judgment.— Headnote:

In an action of filiation before an inferior court, where a proof had been allowed and concluded, an interlocutor was pronounced finding the proof not to amount to a semiplena probatio such as to warrant the pursuer's oath in supplement, but allowing the pursuer a proof of her libel by the defender's oath;—Held, that this was a final judgment in the meaning of the Act of Sederunt, 11th July, 1828, § 1, and of which an advocation was competent.

Facts:

The Advocator, Janet Nelson, brought an action against the respondent, Baird, before the Magistrates of Glasgow, for aliment of an illegitimate child, of which he was alleged to be the father. Baird denied the paternity of the child, or that he ever had illicit intercourse with Nelson. Both parties were allowed a proof, and on 26th May, 1837, the following interlocutor was pronounced:—“Having again considered this process, with the proofs, parole and documentary, adduced by the parties respectively—Finds the proof adduced by the pursuer, being so far redargued by the proof for the defender, does not amount to a semiplena probatio such as to warrant the admission of the pursuer's oath in supplement, but still allows the pursuer a proof of her libel by the defender's oath.” Thereafter, upon a reclaiming petition and answer, the following interlocutor was pronounced on the 7th July;—“Sustains the objections for the defender to the interrogatories put by the pursuer to the witnesses Janet Adgie and Richard Adgie; and having again considered the proofs adduced by the parties respectively, and that the term for proving has been circumduced—Refuses the pursuer's petition, and adheres to the interlocutor of 26th May last.”

Nelson having then applied for leave to present a bill of advocation upon juratory caution, the Magistrates allowed her to present a bill of advocation upon juratory caution found by her in terms of the Act of Sederunt, 11th July, 1828. She thereupon brought an advocation of the Magistrates' judgments, in so far as adverse to her; against the competency of which it was pleaded by Baird, That the interlocutor of 26th May, 1837, adhered to on 7th July, 1837, was not such as could be advocated, not being a final judgment, and the cause not having been concluded. ¹ To this it was answered, that the advocation was competent, as the whole merits of the cause were disposed of by the interlocutor in question.

The Lord Ordinary pronounced this interlocutor, with the subjoined note:—“Having heard the counsel for the parties on the reserved objection to the competency of the advocation, in respect of their being no final decerniture in the case, repels the said objection; and as the respondent has intimated his intention to take this judgment to review, finds him liable in the expense of this part of the discussion.” ^*

Baird reclaimed, praying the Court to find the advocation to be irregular and incompetent, and to dismiss the same.

Lord Medwyn.—I hold the interlocutor of 26th May to be a final judgment, in the meaning of the 1st section of the Act of Sederunt, 11th July, 1828. The magistrates have decided the cause which was before them out and out, by holding

_________________ Footnote _________________

¹ Cameron v. Clephane, June 29,1837 (ante, XV, 1220).

^* “In point of form, the interlocutors of the magistrates complained of certainly are not final; but there is an express ‘leave to present a bill of advocation’ against them; and although there may be reason to think that this leave was granted chiefly with reference to the prayer to find juratory caution sufficient, it still seems impossible to refuse effect to the more general permission to advocate, which is contained in the deliverance, which the magistrates had full power to grant, and which there is no reason to think they would have refused to giant, although there had been no application for the further indulgence of being allowed to advocate upon juratory caution.”

the pursuer not entitled to her oath in supplement, that being the leading point. It would have been incompetent for them to have granted leave to advocate, had this not been a final interlocutor.

Lords Glenlee and Meadowbank concurred.

Lord Justice Clerk was absent.

The Court recalled the interlocutor of the Lord Ordinary, and in respect that there is a final judgment in the cause, in terms of the Act of Sederunt, 11th July, 1828, § 1, repelled the objection to the competency of the advocation, and remitted to the Lord Ordinary, finding additional expenses due.

Solicitors: J. Cullen, W. S.— W. Muir, S. S. C.—Agents.

SS 16 SS 1249 1838