Scottish Court of Session Decisions

The Evidence (Scotland) Act 1866 (29 and 30 Vict. cap. 112) provides by section 3—“Where proof shall be ordered by one of the Divisions of the Court, such proof shall be taken before any one of the Judges of the said Division or of the Lords Ordinary to whom the Court may think fit to remit, in one or other of the modes above provided in section 1 hereof, and his rulings upon the admissibility of evidence in the course of taking proof shall be subject to review by the Division of the Court in the discussion of the report of the proof.”

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 62, provided—“The 3d section of the Act 29 and 30 Vict. cap. 112, is hereby amended to the effect of providing that, notwithstanding the terms of said section, ‘where proof shall be ordered by one of the Divisions of the Court,’ it shall no longer be competent to remit to one of the Lords Ordinary to take such proof, but it shall be taken before any one of the Judges of the said Division, whose place may for the time be supplied by one of the Lords Ordinary called in for that occasion.”

This case was reported by Lord Fraser to the Second Division under the following circumstances:—The action was brought before Lord Fraser (Ordinary) in the Outer House. The defender pleaded—“The pursuers have no title

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to sue this action.” On 30th October 1885 his Lordship found that the pursuers had no title to sue, and dismissed the action as incompetent. The defender reclaimed, and on 10th December 1885 the Second Division pronounced this interlocutor—“Recal the said interlocutor, repel the first plea-in-law stated for the defender, and before further answer allow the parties a proof of their respective averments: Find the pursuers entitled to expenses from the date of said interlocutor. .. and remit the cause to the Lord Ordinary to proceed therein as accords, with power to decern for the expenses now found due when taxed, and decern.” The Lord Ordinary appointed the proof allowed by that interlocutor to take place upon Wednesday 17th February. On that day objection was taken, under the 62d section of the Court of Session Act 1868, to the competency of the Lord Ordinary taking the proof. The ground of objection was that under the 62d section of the Court of Session Act 1868, as amending the Evidence (Scotland) Act 1866, the Court could no longer remit the case to a Lord Ordinary to take the proof. In the case of Main v. Galbraith and Others (Fleming's Trustees), June 30, 1883, 8 R. 880, the interlocutor was in the following terms—“Recal the interlocutor, and remit to the Lord Ordinary to allow the parties a proof before answer.” In that case the Court was of opinion that the 62d section of the Act of 1868 did not apply. But the interlocutor here was different. Two reasons had been suggested by counsel to the Lord Ordinary why this case fell under the 62d section of the Act of 1868—(1) That that Act had been passed so as to lessen the expenses of litigation. (2) That if the Court thought that any proof was necessary they might have the advantage of at least one of the Judges who were to decide the cause having seen the witnesses.

Lord Justice-Clerk—My impression is that the clause in the Act of Parliament was only intended to apply to cases where the case having been brought into the Division on the merits, the Court thought it necessary that proof should be taken before judgment could be pronounced. But the clause does not apply to this case, where an action having been begun in the Outer House in the usual way, and the Lord Ordinary having pronounced a judgment on a preliminary plea, the case is brought before the Inner House on a reclaiming-note, and the Inner House has altered the judgment of the Lord Ordinary.

Lord Young—That is also my opinion. The case is simple enough. The case was begun in the Outer House, and the parties sought a judgment from the Lord Ordinary as they were entitled to do. But the Lord Ordinary was of opinion that the action was incompetent—that the pursuer had no title to sue. The case was not argued or decided on its merits in the Outer House. Well, the case came here on a reclaiming-note, on the question whether the action is a competent one. We were of opinion that the action was a competent action—that the pursuer had title to sue. The proper course was then to send the case back to the Outer House to be tried there. We were of opinion that the pursuer had a title to sue his action, and therefore we remitted back to the Lord Ordinary to take the proof. I agree with your Lordship that the form of the interlocutor had better be changed, but even as it stands it is not impossible to be worked out. This is quite a different case from that to which the Act of Parliament is meant to apply. A case has passed through the Outer House; it has been heard and decided there. Well, if it comes here on a reclaiming-note, and we think that a proof of the facts is necessary before we can give a proper judgment upon it, we may order it, and we order that it should be taken before one of the Judges of the Division, and do not remit the case back to the Lord Ordinary who has already disposed of it. But that is not the case here. The only thing before us on the reclaiming-note was the question whether the case was a competent one or not. I believe, although I do not remember the case, that that was the only question before us. We remitted the case back to the Outer House to be dealt with by the Lord Ordinary as a competent case. I agree with your Lordship that that was the substance of an interlocutor, and that the case ought to go on in the Outer House.

Lord Craighill—I am of the same opinion. I have always understood that this section in the Court of Session Act was to provide against that which might have been an inconvenient arrangement. The words of the clause in the former statute were so wide that the Lord Ordinary might have been employed as a mere commissioner, and it was to provide against that that the section in the Act was so framed. But I never understood that in a case which fell to be decided by the Lord Ordinary, but which had been reclaimed on a preliminary point to the Inner House, the Division could not pronounce an interlocutor ordering the proof in the cause to be taken by the Lord Ordinary.

Lord Rutherfurd Clark concurred.