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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kermack v. Kermack [1875] ScotLR 12_195_1 (8 January 1875)
URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0195_1.html
Cite as: [1875] ScotLR 12_195_1, [1875] SLR 12_195_1
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SCOTTISH_SLR_Court_of_Session
Page: 195↓
Court of Session Inner House First Division.
[Sheriff Court of Fifeshire.
v.
(Ante, p. 105.)
A. S., 10th July 1839, § 61.
Facts:
In a case in which the long negative prescription was said to have been interrupted by payments of interest upon the debt, the Court held that proof prout de jure was incompetent, but as it was alleged that receipts for the payments of interest were extant, they allowed the pursuers to lodge a specification of any documents which they desired to recover by diligence. The specification having been lodged, the Court granted commission and diligence for recovery thereof, the commission to be reported on a fixed day. The pursuers allowed that day to go past without executing the diligence, and then put in a minute abandoning the action. Held that it was competent for them to do so, no interlocutors of absolvitor, or necessarily leading thereto, having been pronounced.
Opinion—That the words “interlocutor of absolvitor” in the 61st section of the Act of Sederunt of 10th July 1839 included an interlocutor necessarily leading to absolvitor.
In this appeal, which is reported ante, p. 105, the defender pleaded the long negative prescription, while the pursuers averred interruption thereof by payments of interest upon the debt. The Sheriff-Substitute, and the Sheriff on appeal, allowed the pursuers a proof prout de jure of their averments as to payment of interest, and to the defender a conjunct probation.
On appeal to the Court of Session the First Division pronounced, on 27th November 1874, the following interlocutor:—“The Lords having heard counsel on the appeal, record, and proceedings, recal the interlocutors of the Sheriff-Substitute and the Sheriff, dated the 5th May and 25th and 30th June 1874: Find the proof allowed by these interlocutors to be incompetent, but allow the pursuers (respondents) to lodge a specification of any documents which they desire to recover by diligence.”
On 16th December the Court pronounced this further interlocutor:—“The Lords having considered the specification of writings and documents for the respondents, No. 16 of process, and heard counsel thereon, disallow articles 1 and 3 of the said specification; grant diligence at the instance of the respondents against havers for recovery of the documents mentioned in the 2d article, as amended, of the said specification, and grant commission to Henry Johnston, Esq., Advocate, Edinburgh, to examine the havers, and receive their exhibits or make excerpts therefrom, to be reported by the second sederunt day in January next.”
The diligence was not executed and the pursuer now proposed to put in a minute abandoning the action, which was opposed by the defender upon the ground that the interlocutor of 27th November, or at all events that interlocutor when taken in connection with that of December 16, was an interlocutor of absolvitor within the meaning of the Act of Sederunt of 10th July 1839, and that it was therefore competent for the defender to abandon the action.
The pursuer argued—(1) This case was under the Act of Sederunt 1839, and not under that of 1828. The provisions of these two Acts differed, for while the latter made it competent to abandon an action before an interlocutor had been pronounced “assoilzieing the defender in whole or in part, or leading by necessary inference to such absolvitor,” the former made it competent for the pursuer to abandon before any “interlocutor of absolvitor is pronounced,”—clearly meaning an interlocutor which assoilzies the defender and decerns. The interlocutor in this case did not do so. (2) Even if the Act of Sederunt of 1828 applied, this interlocutor was not one leading necessarily to absolvitor, but merely limiting the kind of proof. The time fixed by interlocutor for recovering the documents had undoubtedly expired, but the Court might have granted an extension of the time.
The defender argued—The provisions of the Act of Sederunt of 10th July 1839, sec. 61, and of Act of Sedurunt of 11 th July 1828, sec. 118, must be read as meaning the same thing, viz., that it was incompetent to abandon an action after an interterlocutor had been pronounced which necessarily led to absolvitor. Such an interlocutor had been pronounced here, for the judgment of the Court was practically this, that unless the pursuer could prove his allegations by writ the defender was entitled to absolvitor. But the pursuer
Page: 196↓
had not availed himself of the opportunity thus given him, but had allowed the time fixed by the interlocutor for recovering the documents to expire, and he could not now by abandoning the action deprive the defender of the absolvitor to which he was entitled. At advising—
Section 61 of the Act of Sederunt of 10th July 1839 provides—“It shall be competent to the pursuer before any interlocutor of absolvitor is pronounced to enter on the record an abandonment of the cause on paying full expenses to the defender, and to bring a new action if otherwise competent.”
I think the meaning of the term “interlocutor of absolvitor” is clear. It means an interlocutor which assoilzies and decerns. But the phraseology used in the section which I have just read is different from that used in the corresponding section (115) of the Act of Sederunt of 11th July 1828, for in the latter the description of the condition of the process when abandonment is competent is “before an interlocutor has been pronounced assoilzieing the defender in whole or in part, or leading by necessary inference to such absolvitor.” It is contended that the distinction is material, but I do not give much weight to that contention. Under the Act of 1839, equally with that of 1828, if an interlocutor is pronounced which necessarily leads to absolvitor, the pursuer has not the right to abandon. But reading the two sections as meaning the same thing, the question is, whether the interlocutor in this case necessarily leads to absolvitor. The interlocutor of 27th November does not do so, for I cannot say that an interlocutor which allows the pursuer to recover documents by diligence, the object being to enable him to prove his case, necessarily leads to absolvitor. But there is a subsequent interlocutor, and the two taken together may have the effect of necessarily leading to absolvitor. But that is not so, for the second interlocutor is only another step in allowing the pursuer to prove his case.
It is suggested that, in consequence of the pursuer not having availed himself of the diligence, it must be assumed that absolvitor will necessarily follow. I think there is a fallacy in this contention. The pursuer is not going on just because he has made up his mind to abandon. That does not bring the defender any nearer to absolvitor. I therefore do not think we can refuse to the pursuer the absolute right to abandon which the Act gives him.
The other Judges concurred.
The Court pronounced the following interlocutor;—
“The Lords having heard counsel on the minute of abandonment for the pursuers (respondents), No. 17 of process, Repel the objection to the competency of the said minute, and, in respect of the said minute of abandonment, Allow to defender (appellant) to give in accounts of expenses incurred both in the Inferior Court and this Court, so far as not already found due and paid under the interlocutor of 27th November last, and remit the said accounts when lodged to the Auditor to tax and report.”
Counsel for the Pursuer— Balfour. Agent— Charles S. Taylor, S.S.C.
Counsel for the Defender— Dean of Faculty (Clark) and Rhiud. Agents— D. Crawford & J. T. Guthrie, S.S.C.