Scottish Court of Session Decisions

Mrs Susannah Cramb or MacGown raised an action against Miss Susannah Cramb, to have it declared that by survivance of her uncle James Cramb she had acquired a personal right, as one of his heirs—portioners, to one-half pro indiviso of his heritable estate.

The defence was that James Cramb, who died in 1876, had by holograph settlement conveyed his whole property absolutely to his brother John, who died in 1894 leaving his whole means and estate to the defender; and that the validity of James' settlement had remained unchallenged by the pursuer for nearly twenty years.

The defender pleaded, inter alia—No title to sue.

On 3rd November 1896 the Lord Ordinary ( Kincairney) closed the record and allowed the parties a proof of their respective averments, and on 20th November, at the instance of the defender, he granted diligence for the recovery of certain documents.

Among the documents recovered under this diligence was an antenuptial contract of marriage between the pursuer and her husband, executed in 1877, by which the pursuer conveyed to certain trustees, “All and whole, the whole property, means, estate, and effects, heritable and moveable, real and personal, wherever situated, presently belonging or which may hereafter belong to her by inheritance, gift, bequest, conquest, or in any manner of way whatsoever,” but in trust always for the pursuer.

The defender on 5th January 1897 moved the Lord Ordinary to open up the record in order that she might add an amendment thereto setting forth the above-mentioned marriage-contract. She also moved the Lord Ordinary to recal the interlocutor allowing a proof, and to send the case to the Procedure Roll to discuss the plea of title, on which she maintained the marriage-contract had an important bearing.

The Lord Ordinary allowed the defender's amendment, of new closed the record, and reported the case to the First Division.

Note.—“At the closing of the record on 3rd November last the Lord Ordinary, on the motion of the parties, allowed to them a proof of their averments. On 5th January current the defender moved for leave to add to the record certain statements of the nature of res noviter. It appeared to me that these statements should be considered, and accordingly the record has been amended by the addition of these statements, with the pursuer's answers thereto.

The defender has contended that the effect of these statements is to destroy the pursuer's title to sue, and that therefore the interlocutor allowing proof should he recalled. As I do not seem to have power to recal that interlocutor, the defender's

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counsel moved that I should report the cause.”

The defender moved the Court to authorise the Lord Ordinary to discharge the order for proof and to send the case to the Procedure Roll. The defender admitted that there was no statutory provision authorising such a course, but appealed to the nobile officium of the Court.

The pursuer opposed the motion and argued—Sections 27 and 28 of the Court of Session Act 1868 were absolutely binding. An interlocutor allowing proof was final, unless reclaimed against within six days, and res noviter made no difference. No reclaiming-note had been presented here within the statutory period.