Scottish Court of Session Decisions

This case, which was reported when in the Outer House, involves the question of practice whether a Lord Ordinary, having pronounced an interlocutor “circumducing the term for reporting a proof,” and the reclaiming days applicable to such an interlocutor having expired, it is competent for him to receive proof that was led previous to the interlocutor pronouncing circumduction, the opposite party withholding consent. A motion to that effect made by the pursuer, against whom circumduction had passed, was refused by the Lord Ordinary (Barcaple). Against this interlocutor the pursuer reclaimed. At the discussion to-day, the pursuer contended that the interlocutor was per incuriam worded erroneously, that the only interlocutor which the Lord Ordinary could pronounce was one circumducing the term for proving, and that he was not excluded from lodging the proof which he had led. The Court decided that circumducing the term for proving and for reporting were substan tially one and the same thing, and explained their meaning to be, not that after the term appointed no more proof could be led before the commissioner, but that at that date the proof must be reported to the Court. Apart from this question, the defender submitted that the Court could not deal with the

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matter by reason of the finality of the interlocutor of circumduction; and further, that even assuming the power of the Court to interfere, the pursuer was not in a position to appeal to its equitable jurisdiction, because on the face of the proceedings it was clear he was to blame, and until he had exhausted every remedy that was competent to him, the Court could give him no assistance. A remedy that was still open to him was to abandon his action. On the recommendation of the Court, the defender withdrew his opposition to the receiving of the proof, and the case was remitted to the Lord Ordinary to receive it, on condition of the pursuer paying all the expenses incurred in the action since the 1st of November. The question of the finality of the interlocutor was accordingly not disposed of.