Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0004.html
Cite as: [1901] SLR 39_4, [1901] ScotLR 39_4

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SCOTTISH_SLR_Court_of_Session

Page: 4↓

Court of Session Inner House Second Division.

Tuesday, October 15. 1901.

[ Lord Low, Ordinary.

39 SLR 4

Davies

v.

Davies.

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

Circumstances in which the Court repelled an objection taken to the competency of a reclaiming-note on the ground that it was signed by the party reclaiming and not by counsel.

Headnote:

Mrs Rebecca Ash or Davies, wife of Simon Davies, tailor and clothier, Edinburgh, raised an action of separation and aliment against her husband on the ground of cruelty.

Defences were lodged by the husband. These defences were signed by counsel. After the closing of the record the defender ceased to be represented by counsel or agent, and he conducted the defence on his own behalf.

Judgment:

After proof the Lord Ordinary ( Low) found that the defender had been guilty of cruelly maltreating the pursuer, and granted decree of separation and aliment.

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

The pursuer objected to the competency of the reclaiming-note, and argued—The note was not signed by counsel, and no attempt had been made by the defender to get the signature of counsel. There being no special circumstances in this case the Court should refuse to receive the reclaiming-note— Hawks v. Donaldson, November 16, 1889, 2 F. 95, 37 S.L.R. 70; Whyte's Judicial Factor v. Whyte, June 19, 1900, 37 S.L.R. 784.

Argued for the defender—It was unnecessary for the defender to obtain the signature of counsel. He was a poor man and could not afford to employ counsel. By the law of Scotland a party was entitled to conduct his case in any court of law and to sign the necessary documents.

Lord Justice-Clerk—It is the opinion of the Court that in the circumstances of this case the objection taken by the reclaimer should not be sustained.

Lord Young was absent.

The Court sent the case to the roll.

Counsel:

Counsel for the Pursuer and Respondent— J. A. Christie. Agent— Geo. Meston Leys, Solicitor.

Counsel for the Defender and Reclaimer—Party. Agent—Party.
1901

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