Scottish Court of Session Decisions

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Cite as: [1900] SLR 37_784, [1900] ScotLR 37_784

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SCOTTISH_SLR_Court_of_Session

Page: 784↓

Court of Session Inner House First Division.

Tuesday, June 19. 1900.

[ Lord Pearson, Ordinary.

37 SLR 784

Whyte's Judicial Factor

v.

Whyte.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Reclaiming-Note Signed by Party only
Subject_4Competency.
Facts:

The rule of practice under which a reclaiming-note requires to be signed by counsel was not established by any statute or Act of Sederunt or positive decision, but rests solely upon practice, and accordingly the Court will depart from it in special circumstances.

Objection was taken to the competency of a reclaiming-note on the ground that it was signed by the party reclaiming and not by counsel. It appeared that there had been previous reclaiming-notes in the process which had been signed by the party only, and which had been entertained by the Court without objection having been taken to their competency. The party also stated that he had endeavoured, though unsuccessfully, to obtain the signature of counsel.

The Court in the circumstances repelled the objection.

Page: 785↓

Headnote:

Mr Richard Brown, C.A., Edinburgh, interim factor on the estate of the deceased George Whyte, presented a petition for exoneration and discharge. Objections were lodged by Mr George Whyte, 25 Cazenove Road, London.

The Lord Ordinary ( Pearson) on 6th June 1900 pronounced an interlocutor whereby he repelled these objections and found that on certain things being done the petitioner's appointment would fall to be recalled and the petitioner exonered and discharged.

The respondent presented a reclaiming-note signed by himself and not by counsel.

The petitioner objected to the competency of the reclaiming-note, in respect that it had not been signed by counsel but by the party himself, and founded upon the cases of Hawks v. Donaldson, Nov. 16, 1899, 2 F. 95; Smith v. Lord Advocate, June 16, 1897, 5 S.L.T. 76; Jaffray v. Jaffray, Dec. 19, 1863, 2 Macph. 355; Watt v. Johnston, 1863, 1 Macph. 269 (note).

The reclaimer stated that he had done his best to obtain the signature of counsel, but that he had been unable to do so, and that he had already presented three reclaiming-notes signed by himself, the competency of which had not been disputed. He maintained that it was unnecessary to obtain the signature of counsel.

It appeared that in the course of these proceedings several reclaiming-notes had been presented by the respondent which were signed by himself and not by counsel, to which no objection had been taken, and, in particular, that he had presented a reclaiming-note signed only by himself against an interlocutor pronounced by the Lord Ordinary on 27th October 1898, which had not been objected to, and upon which the Court, upon 17th December 1898, pronounced an interlocutor which bore that the Lords, having considered the reclaiming-note,… recalled the said interlocutor.

Judgment:

Lord President—There is no doubt that as a rule of practice this Court requires that reclaiming-notes shall be signed by counsel, but, as I understand and as I think it was admitted at the bar, the rule was not established by any Act of Parliament or Act of Sederunt or positive decision. This being so it would be unfortunate if it was not in the power of the Court to dispense with a rule founded only on practice, upon special cause for doing so being shown on any fitting occasion. Now, a striking peculiarity of the present case is that the reclaimer has in the course of these proceedings presented several reclaiming-notes not signed by counsel but only by himself, all of which have been entertained, the case on each occasion having been sent to the roll and afterwards considered. In particular, the last of these reclaiming-notes presented on 29th October 1898 was signed only by the reclaimer, not by counsel, and this Division of the Court by interlocutor of 5th November 1898 sent the case to the summar roll. The case was afterwards heard, and an interlocutor was pronounced on 17th December 1898, which refers to the reclaiming-note in these terms—[ His Lordship quoted the material part of the interlocutor, ut supra]. Lord Pearson afterwards heard parties in the Outer House, and pronounced the interlocutor which it is now proposed to submit to review. It would be anomalous that a reclaiming-note should be entertained by the Court though signed only by the party at an earlier stage of the proceedings, and the same Court should be obliged to refuse to entertain a later reclaiming-note so signed when the reclaimer comes again with the object of following out the same proceeding to its completion after an interlocutor had been pronounced by the Lord Ordinary. If it is within the power of the Court on special cause shown to dispense with its own rule of practice, this seems to me to be a case in which we should do so. Accordingly, without giving any countenance to a general practice of entertaining reclaiming-notes which are not signed by counsel, and having regard to the very special circumstances of the case, including the statement made by the reclaimer at the bar that after doing his best he has been unable to obtain the signature of counsel, I think we may dispense with the necessity of having the reclaiming-note signed by counsel on this occasion.

Lord M'Laren and Lord Kinnear concurred.

Lord Adam was absent.

The Court pronounced this interlocutor:—

“The Lords in the circumstances dispense with the signature of counsel to the reclaiming-note, and appoint the case to be put to the summar roll.”

Counsel:

Counsel for the Petitioner— C. K. Mackenzie. Agents— Welsh & Forbes, S.S.C.

Counsel for the Respondent— Party. Agent— Party.
1900