Scottish Court of Session Decisions

Loud President— One important circumstance here is that the Lord Ordinary has granted leave to reclaim, showing that his Lordship did not think this interlocutor fell under the 28th section, under which no leave is required. It is the right of the party to reclaim within six days; but if he doe3 not reclaim in six days the interlocutor is final, and cannot be opened up at any stage of the case. It becomes absolutely final. It is not like an interlocutor that may or may not be reclaimed against. The class of interlocutors which fall under the operation of the 27th and 28th sections would require to be pretty strictly defined, and I think they are so by the 27th section. The finality is provided for in the 28th section in these words— “Any interlocutor pronounced by the Lord Ordinary, as provided for in the preceding section, except under sub-division (1), shall be final in law within six days from its date; the parties or either of them shall present a reclaiming note against it,” &c. We must be satisfied that the interlocutor before us is within the description of those declared to be final before we can refuse it as incompetent. Is this then an interlocutor, pronounced by the Lord Ordinary, provided for under the preceding section? The only part of that section said to apply is the fourth sub-division, and that is— “ The Lord Ordinary shall think farther probation should be allowed, but that such probation should not be taken before a jury.” These words express merely the motion of the Lord Ordinary— “ He may pronounce an interlocutor dispensing with the adjusting of issues, and determining the manner in which proof is to be taken or inquiry is to be made, and make such order as may be necessary for giving effect to such interlocutor.” The first observation to be made here is, that the interlocutor before uas is not one dispensing with the adjustment of issues. Nay, I think there is nothing in it that necessarily implies that there are to be issues; for though a proof is to be led, a proof before consent, it might be convenient to have an issue adjusted with a view to that proof. In the second place, this is not merely determining the manner of proof; it allows a proof before answer, which is not con-templated in the 27th section. Sometimes it is of very considerable importance whether the proof is to be before answer or not. If the proof is allowed without these words it usually amounts to sustaining the relevancy of the averments; but if the words are added, the relevancy is still open. I cannot hold this to be within the meaning of the fourth sub-division of the section, and therefore I am for repealing the objection.

The other Judges concurrred.