Scottish Court of Session Decisions

Lord President—The objection against this reclaiming-note is now rested on section 11 of the Court of Session (Scotland) Act 1850 (13 and 14 Vict. c. 36), which provides—“And be it enacted, that it shall not be competent to reclaim against any interlocutor of the Lord Ordinary at any time after the expiration of ten days from the date of signing such interlocutor, with the exception only of reclaiming-notes against interlocutors disposing in whole or in part of the merits of the cause, and against decrees in absence, which reclaiming-notes shall continue to be competent in like manner as at the passing of this Act,” i.e., shall be competent within twenty-one days.

This enactment can admit of no double construction, and has been more than once strictly applied by the Court, and the only question is whether the interlocutor under review disposes in whole or in part of the whole cause.

The state of the process is as follows:—On 12th May 1883 the Lord Ordinary pronounced this interlocutor, which disposed of the whole merits of the cause, … “Ordains the defender to make payment to the pursuers of the sum of £146, 19s. 4d., with interest thereon at the rate of five per cent. per annum from the 3d day of June 1882, being the date of citation: Ordains the defender further to make payment to the pursuers of the sum of £48, 15s. 2d. of expenses of process, and of the judicial reference, and decerns: Finds the defender liable to the pursuers in the sum of two guineas of modified expenses occasioned by this discussion, and decerns against him therefor accordingly.” Now, it is almost impossible to conceive an interlocutor which would more completely dispose of the whole merits of the cause, for it not only decerns against the defenders on the merits, but also decerns against him for expenses, and left nothing more to be done.

But then after final judgment in a cause either party has the right to refer the question in dispute to the oath of his opponent, and in ordinary circumstances this right cannot be interfered with, though in certain cases such reference is incompetent, and in others still the Court will disallow it. Therefore there is always a question whether such a reference is to be sustained or refused; but when the party puts in his minute of reference to oath, he in a certain sense revives the case, and if he is found entitled to have the reference sustained, then the merits are disposed of on the import of the oath, and the interlocutor which disposes of that will be a final judgment.

Here the Lord Ordinary has refused to sustain a reference to oath, and accordingly if his interlocutor is right no oath will be taken, and there will be no judgment on the import of it. Still the question is, whether the interlocutor refusing to sustain the reference to oath is not a judgment on the merits of the case as much as an interlocutor before any trial or inquiry at all dismissing the action on the ground of incompetency or irrelevancy. In one sense such an interlocutor is a refusal to enter on the merits of the cause, but it is still a judgment on the merits, for it turns the party out of Court; so here also the judgment turns the party out of Court without allowing him to try the cause over again on a reference to his opponent's oath.

I think therefore that this judgment is within the exception contained in the 11th section of the statute, and that this reclaiming-note is competent. Of course we cannot at this stage consider whether the party is entitled to make this reference to oath, for that will fall to be decided when the case is sent to the roll.

Lords Deas and Mure concurred.

Lord Shand—I agree with your Lordship. This interlocutor is one which deals with the merits of the cause. A reference to oath when competent raises a question on the merits even after a decision, that question being what is the effect of the oath, the result of which may either be decree as concluded for or absolvitor.

If the interlocutor had been one sustaining the minute of reference I should then have held it to be an interlocutor which must be reclaimed against within ten days, for the Lord Ordinary would merely have thereby determined a matter of procedure, and until the cause had been dealt with on the reference there would have been no judgment on the merits. This appears to be a judgment on the merits just as much as an interlocutor dismissing the action as incompetent.

The Court repelled the objections to the competency of the reclaiming-note and sent the case to the roll.