Scottish Court of Session Decisions

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Cite as: [1893] SLR 30_636, [1893] ScotLR 30_636

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SCOTTISH_SLR_Court_of_Session

Page: 636↓

Court of Session Inner House First Division.

Saturday, May 20. 1893.

[ Lord Kyllachy, Ordinary.

30 SLR 636

Anstruther

v.

Burns and Others.

Subject_1Process
Subject_2Competency of Reclaiming-Note
Subject_3Imported Refusal or Postponement of Proof
Subject_4Interlocutor merely Step in Procedure previously Fixed — Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 27 and 28 — A.S., 10th March 1870.
Facts:

Upon 4th February the Lord Ordinary found in an action of declarator that a certain agreement did not supersede the obligation of the defenders to execute a lease, and appointed them to lodge objections to the draft produced, and upon 13th May he remitted to a man of skill to adjust the draft lease and to report. The former interlocutor was not reclaimed against within six days, and leave to reclaim was refused. Against the latter interlocutor the defenders reclaimed within six days.

Held that the reclaiming-note was incompetent, as the interlocutor reclaimed against was merely a step in the procedure previously determined upon.

Headnote:

In July 1892 Sir Windham C. J. C. Anstruther, Bart., brought an action against Straton B. Burns and others to have it found and declared that the defenders were bound by virtue of an agreement dated 15th August 1862 to enter into and execute a lease of certain coalfields in terms of a draft produced.

Upon 4th February 1893 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Finds that the obligation of the defenders' author contained in the agreement of 1862 to execute a formal and regular lease of the mineral field in question was not superseded by the subsequent and supplementary agreement of 1871; and before further answer appoints the defenders within ten days to state their objections, if any, to the draft lease produced with the summons, and forming No. 7 of process, and the pursuer to answer said objections within ten days thereafter.”

Upon 16th February leave to reclaim against this interlocutor was refused in hoc statu.

Upon 24th March the Lord Ordinary heard counsel on the objections and answers, and appointed the cause to be enrolled on the second sederunt day for further procedure, and meantime refused leave to reclaim. Upon 13th May the Lord Ordinary pronounced
Page: 637↓
this interlocutor:—“Having considered the draft lease, No. 7 of process, with the objections and answers thereto, Nos. 24 and 25 of process, and the minutes for the parties, Nos. 26 and 27 of process, remits to Mr W. J. Dundas, C.S., to consider the record and productions, to meet with the parties, and to adjust the draft lease, and to report quam primum.”

Against this interlocutor the defenders lodged a reelaiming-note upon 19th May.

It was argued for the pursuers that the reclaiming-note was incompetent because leave to reclaim had not been obtained, and the interlocutor sought to be brought under review neither exhausted the conclusions of the summons nor settled the mode of proof. Possibly the interlocutor of 4th February might have been reclaimed against within six days without leave, but that had not been done. A course of procedure was then determined upon in which the interlocutor now reclaimed againt was merely a step.

Argued for reclaimers—This interlocutor, by remitting to a man of skill, imported a refusal or postponement of proof, and could be reclaimed against within six days without leave—Court of Session Act 1868, secs. 27, 28, and A.S., March 10, 1870; Little v. North British Railway Company, July 4, 1877, 4 R. 980; Quin v. Gardner, June 22, 1888, 15 R. 776.

At advising—

Judgment:

Lord President—I am of opinion that this reclaiming-note is incompetent. There may be ample room for the question whether the interlocutor of 4th February did not, in the words used in Quin's case, “virtually settle the mode of proof.” It would appear from Mr Guthrie's statement that by implication the Lord Ordinary on that date was asked to allow a proof and refused, because he set in motion another course of procedure which is being carried out, and in which the interlocutor now reclaimed against is only a step. But that interlocutor was not reclaimed against, and Mr Guthrie is thus either too late or too early.

Lord Adam—I am of the same opinion. There are cases in which a remit is made to a reporter with the view of superseding proof, but it is not so here. This remit is made with the view of carrying out the finding of the Lord Ordinary in a previous interlocutor, and for the purpose of having the terms of a lease adjusted. It will be open to the reclaimers after the report to object to the terms of the lease proposed, and to move for a proof.

Lord M'Laren—The proper time to have reclaimed was after the interlocutor of 4th February, because it was then determined that in the meantime, at all events, the facts were not to be investigated by means of a proof. It would be inconvenient if after this stage of the case was passed and a remit made to a reporter we were to interrupt proceedings which have begun with the view of reconsidering whether proof was or was not necessary. It will be open to the reclaimer to move for a proof after Mr Dundas's report has been given in.

Lord Kinnear was absent.

The Court refused the reclaiming-note as incompetent.

Counsel:

Counsel for Pursuers and Respondents— H. Johnston— Wallace. Agents— Russell & Dunlop, W.S.

Counsel for Defenders and Reclaimers— Guthrie— T. B. Morison. Agent— P. Morison, S.S.C.
1893