Scottish Court of Session Decisions

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Cite as: [1876] SLR 13_665, [1876] ScotLR 13_665

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SCOTTISH_SLR_Court_of_Session

Page: 665↓

Court of Session Inner House First Division.

Tuesday, July 18. 1876.

[ Lord Young, Ordinary.

13 SLR 665

Petition—Robertson.

Subject_1Process
Subject_2Petition
Subject_3Competency
Subject_4Reclaiming Note — Statute 36 and 37 Vict. cap. 63 — Review by Inner House.
Facts:

Held that the following provision in the 7th section of the Law Agents Act 1873, viz.—“A single judge shall be entitled to act as the Court with reference to all petitions for admission as a law agent under this Act,” does not render a reclaiming note against his judgment incompetent.

Observed by the Lord President that the power of review by the Inner House of all interlocutors pronounced by the Lord Ordinary cannot be taken away by implication. This was a petition presented in terms of the 10th section of the Law Agents Act (36 and 37 Vict. cap. 63). The Lord Ordinary pronounced the usual interlocutor, quoted in the Lord President's opinion. The petitioner, believing that he was entitled to be admitted without examination, on the ground that at the date of the passing of the Act he was entitled to be admitted a procurator under the Procurators Act of 1865, asked leave to reclaim against this interlocutor, which the Lord Ordinary granted, reserving all questions of competency.

Headnote:

On the question of competency it was argued for him—The expression “Lord Ordinary” used in; the 7th clause of the Act indicates the intention of the Act to allow the review of any interlocutors pronounced under the powers conferred by it. Under section 8th of the Judicature Act of 1825 review is declared competent unless expressly excluded— Otis v. Kidston, 24 Dunlop 419, Lord Justice Clerk's remarks, p. 426.

At advising—

Judgment:

Lord PresidentLord President—The first point to be disposed of in this petition regards the competency of the reclaiming note. It is a petition presented to the Court by John Robertson, writer, Edinburgh, to be admitted a law agent; and Lord Young, to whom the petition was presented, has pronounced an interlocutor by which he “remits to the examiners appointed by the Act of Sederunt of 6th November 1873, to inquire into the facts set forth in the petition,

Page: 666↓

to take trial of the petitioner's qualifications, fitness, and capacity to be admitted as a law agent, and to report.” The petitioner is dissatisfied with that interlocutor, because he thinks he has a title to be admitted without examination. Now, the Lord Ordinary has himself suggested a difficulty which is worthy of consideration, viz., whether the statute intended the interlocutor of a Lord Ordinary to be subject to review. That depends on the 7th section of the Law Agents Act, which is—“Any person qualified as hereinbefore provided may present to the Court a petition praying to be admitted as a law agent, and the Court shall examine and inquire by such ways and means as they think proper touching the indenture and service and the fitness and capacity of such person to act as a law agent; and if the Court shall be satisfied by such examination, or by the certificate of examiners as hereinafter mentioned, that such person is duly qualified and fit and competent to act as a law agent, then and not otherwise the Court shall cause him to be admitted a law agent, and his name to be enrolled as such, which admission shall be in writing and signed by a Judge of the Court, and shall be stamped with the stamp required by law to be impressed on the admission of law agents.” And then follows the portion which more immediately applies to this case—“The petition may be presented to any Judge of the Court officiating as a Lord Ordinary, and the proceedings under the same may take place and be conducted before the same or any other Judge, according to the judicial arrangements in the Court for the time being, and a single Judge shall be entitled to act as the Court with reference to all petitions for admission as a law agent under this Act;” Now, the difficulty arises from the last member of that sentence— a single Judge shall be entitled to act as the Court with reference to all petitions for admission as a law agent under this Act but notwithstanding the ambiguity raised by that form of expression, we are of opinion, and the Judges of the Second Division whom we consulted are of opinion also, that it is not incompetent to submit this interlocutor to review by the Inner House. Our view is, that the petition is in the first instance to be presented to a Lord Ordinary, and it may be presented to the Lord Ordinary who is officiating on the Bills in vacation, and the form of expression is probably due to the fact that it was intended to make it competent to present the petition to any Judge of the Court of Session who may be in that position. The power of review by the Inner House of all interlocutors pronounced by a Lord Ordinary cannot be taken away by implication, and there is nothing here like an express withdrawal of that power of review. It therefore becomes necessary to consider the merits of this application.

Lords Deas and Lord Mure concurred.

Lord Ardmillan was absent.

The Court, after hearing further argument on the merits, pronounced the following interlocutor:—

“The Lords having heard counsel for the reclaimer on the reclaiming note for John Robertson, writer, Edinburgh, against Lord Young's interlocutor of 29th June 1876, Sustain the competency of the reclaiming note, but refuse the same on the merits, and adhere to the interlocutor reclaimed against.”

Counsel:

Counsel for Petitioner— Begg. Agent— Party.
1876