Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0493.html
Cite as: [1876] ScotLR 13_493, [1876] SLR 13_493

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SCOTTISH_SLR_Court_of_Session

Page: 493↓

Court of Session Inner House First Division.

[ Lord Craighill, Ordinary.

Saturday, June 3. 1876.

13 SLR 493

Clark

v.

Kirkwood (M'Allister's Trustee).

Subject_1Proem
Subject_2Reclaiming Note
Subject_3Leave of Lord Ordinary
Subject_4Court of Session Act 1868 (31 and 32 Vict, cap. 100), secs. 27, 28, and 54 — Act of Sederunt, March 10, 1870, secs. 1 and 2.
Facts:

An interlocutor renewing an order for proof may be reclaimed against, under the Court of Session A8ct, 1868, secs. 27, 28, and 54, and Act of Sederunt of March 10, 1870, without the leave of the Lord Ordinary.

Headnote:

In this case, which was an action for payment of a law agent's accounts, the Lord Ordinary upon 15th March 1876, allowed both parties a proof of their averments. Upon 18th March the accounts sued for were, on the defender's motion, and of consent of the pursuer, remitted to the Auditor to tax and report. On the report being made, objections were lodged, and upon 30th May the Lord Ordinary, after hearing parties, pronounced an interlocutor finding, inter alia, “that the necessity for a proof is not obviated by said taxation,….. therefore renews the order for proof,” &c. The defender asked leave to reclaim against this interlocutor, which the Lord Ordinary refused. A reclaiming note was thereupon presented to the First Division, and on the case being called in the Single Bills the pursuer objected to its competency.

At advising—

Judgment:

Lord President—Proof was allowed in this case by the interlocutor of 15th March 1876, and if by the interlocutor of 30th May the Lord Ordinary had merely appointed the proof to proceed that interlocutor would not have been reviewable under the Court of Session Act of 1868, or the Act of Sederunt of March 10, 1870; and it would not have been a six days' interlocutor. But by the second interlocutor the order for proof is renewed. It appears to the Court that an interlocutor renewing an order for proof imports an allowance of proof of new, and therefore is an interlocutor which may be reclaimed against without leave.

Lord Deas, Lord Ardmillan, and Lord Mure concurred.

Counsel:

Counsel for Pursuer (Respondent)— Strachan. Agent— George Begg, S.S.C.

Counsel for Defender (Reclaimer)— Pearson. Agents— Rhind & Lindsay, W.S.
1876

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