Scottish Court of Session Decisions

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Cite as: [1912] ScotLR 280, [1912] SLR 280

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SCOTTISH_SLR_Court_of_Session

Page: 280↓

Court of Session Inner House Second Division.

Saturday, January 20. 1912.

[ Lord Guthrie, Ordinary.

49 SLR 280

Copeland

v.

Wimborne.

Subject_1Process
Subject_2Reclaiming Note
Subject_3Review
Subject_4Prior Interlocutor — Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 28 and 52 — Act of Sederunt 10th March 1870, sec. 1, sub-sec. 3, and sec. 2.
Facts:

An interlocutor allowing a proof by writ or oath was not reclaimed against within six days.

Held that it did not become subject to review on the presentation of a reclaiming note against a subsequent interlocutor.

Headnote:

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), enacts, section 28—“Any interlocutor pronounced by the Lord Ordinary as provided for in the preceding section ( dealing with the procedure after Record closed, and Adjustment of Issues) … shall be final, unless within six days from its date the parties, or either of them, shall present a reclaiming note against it to one of the Divisions of the Court, by whom the cause shall be heard summarily.…” Section 52—“Every reclaiming note, whether presented before or after the whole cause has been decided in the Outer House, shall have the effect of submitting to the review of the Inner House the whole of the prior interlocutors of the Lord Ordinary of whatever date
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… to the effect of enabling the Court to do complete justice, without hindrance from the terms of any interlocutor which may have been pronounced by the Lord Ordinary.…”

The Act of Sederunt of 10th March 1870 enacts, section 1—“That the 27th section of the said Act [ i.e., the Act of 1868] shall be altered to the effect of substituting for the enactments thereof the following provisions:—… (3) If the parties are at variance as to whether there shall be proof, or as to what proof ought to be allowed … the Lord Ordinary shall appoint the cause to be enrolled in a roll to be called the Procedure Roll … and after hearing the parties in the said roll the Lord Ordinary shall pronounce such interlocutor as shall be just.…” Section—“That the provisions of the 28th section of the said statute shall apply to all the interlocutors of the Lord Ordinary hereinbefore referred to, so far as these import an appointment of proof or a refusal or postponement of the same.”

Walter Charles Copeland, barrister-at-law, 46 St Vincent Crescent, Glasgow, brought an action against Baron Wimborne, Glencarron House, Ross-shire, and of Wimborne, Dorset, for payment of three sums of (1) £700, (2) £899, and (3) £3500, amounting in all to £4099, which he alleged were due to him in connection with the flotation and management of the “ Rock” Newspaper Company.

On 26th October 1911 the Lord Ordinary ( Guthrie) pronounced this interlocutor—“… Finds that the pursuer's averments can only be proved by the defender's writ or oath: Allows to the pursuer such restricted proof, and appoints the same to be taken on a day to be afterwards fixed.”

Thereafter a medical certificate was lodged in process stating that the defender was mentally unfit to be examined on a reference to oath, and that there was no prospect of such an improvement in his health as would render him fit to be so examined. In these circumstances Baroness Wimborne, the receiver on defender's estate, lodged a minute craving to be sisted as a party to the action.

On 9th December 1911 the Lord Ordinary pronounced this interlocutor—“… Sists The Right Honourable Cornelia Henrietta Maria Baroness Wimborne as a party defender in the action, in terms of the minute of sist, No. 113 of process, and holds the defences stated to the action as the defences of the minuter; and having considered the cause, finds that the pursuer has no proof by writ to offer: Finds, further, that in respect of the medical certificate, the defender Lord Wimborne is not in a state of health to emit on oath: Therefore assoilzies the defenders from the conclusions of the summons, and decerns.…”

The pursuer reclaimed, and moved the Court to recal both the interlocutor of 9th December 1911 and also the interlocutor of 26th October 1911, and to allow a proof prout de jure.

Argued for the defender—The interlocutor of 26th October 1911 having become final, was not now subject to review—Court of Session Act 1868 (31 and 32 Vict. cap. 100), section 28, and A.S., 10th March 1870, section 1 (3), and section 2— North British Railway Company v. Gledden, &c., June 26, 1872, 10 Macph. 870; Stewart v. Clark, March 4, 1871, 9 Macph. 616, 8 S.L.R. 402; Mackay, Manual of Practice, p. 304.

Argued for the pursuer—It was competent to review the interlocutor of 26th October 1911. A reclaiming note submitted to review all prior interlocutors of the Lord Ordinary of whatever date—Court of Session Act 1868, section 52.

Judgment:

Lord Justice-Clerk—On 26th October 1911 the Lord Ordinary in this case appointed proof, limited to the defender's writ or oath, to be taken on a day to be afterwards fixed. This interlocutor was not reclaimed against, and on 9th December, proof by oath being impossible owing to the defender's state of health, and no proof by writ having been offered, decree of absolvitor was pronounced. The pursuer now reclaims against this interlocutor, and moves for a proof prout de jure of his averments. I am clearly of opinion that this motion cannot be granted. The interlocutor of 26th October 1911, by which the method of proof was settled, was not reclaimed against within six days, and therefore by the operation of section 28 of the Court of Session Act 1868, and sections 1 (3) and 2 of the Act of Sederunt, 10th March 1870, it has become final and not subject to review. The pursuer is not in a position legally to ask that he shall now be allowed any other proof than that appointed by the Lord Ordinary. He referred to section 52 of the Court of Session Act 1868, and maintained that the present reclaiming note brought under review all the previous interlocutors, including the interlocutor of 26th October, but, in my opinion, section 52 has no application to the case of an interlocutor which has become final under section 28.

This is sufficient for the disposal of the case. Reference to Lord Wimborne's oath is admittedly impossible, and no writ of the defender has been produced which can support the pursuer's claim. The pursuer being thus unable to substantiate his claim by the only mode of proof which is open to him, it follows that the defender is entitled to absolvitor. It is therefore unnecessary to consider the relevancy of the pursuer's averments, his delay in bringing the action, or any of the other points which were raised at the debate. I should only say that it is unfortunate, especially as the decision turns on a question of procedure in our Courts, that the pursuer did not have the assistance of counsel of this bar.

Lord Dundas—I agree. The interlocutor of the Lord Ordinary of 26th October sustained the defender's third plea-in-law, found that the pursuer's averments could

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only be proved by the defender's writ or oath, and allowed to the pursuer “such restricted proof,” on a day to be afterwards fixed. That interlocutor was allowed to become final, because it was not reclaimed against within six days. I do not think the reclaimer can pray in aid, as he sought to do, the 52nd section of the Court of Session Act 1868, by which in general terms it is provided that every reclaiming note brings under review all prior interlocutors of the Lord Ordinary, because it seems to me that the section cannot mean that such a reclaiming note is to bring up an interlocutor which by force of an earlier section of the same statute has already become final. I am not aware of any decision precisely settling the point, but that is the view laid down by Mr Mackay in his standard text-book on the subject at p. 304, where he says that the wide power of section 52 is subject to two limitations, one of which is that interlocutors settling the mode of proof are final if not reclaimed against within six days. If this view be correct, as I think it is, I agree that it ends the matter, because while it is technically competent to reclaim against the interlocutor of 9th December, still if the earlier interlocutor is not subject to review there is really nothing left to reclaim about. It is not necessary for us to say whether Lord Guthrie's decision of 26th October was right or wrong. I have formed no concluded opinion upon that matter, although I see no reason to doubt that it is right. But I desire to add, and I think it is perhaps fair to the pursuer to do so, that, speaking for myself, I have much graver doubts than the Lord Ordinary says he has—and he says he has some—as to whether there is really here any relevant case at all. Although I have read the record more than once, and have heard it read, I have the greatest difficulty in formulating in my own mind what sort of contract is founded on. We were told that it is a contract of agency; on the other hand parts of the record seem to point to a contract of service. I confess I have not been able to discover with any degree of clearness what were the duties or services undertaken to be performed by the pursuer, or upon what terms, or to whom. It is unnecessary to form any decided or concluded view upon that matter, but I think it right to say that, as at present advised, I have very great doubt whether there are really here the bones of a relevant case at all.

Lord Guthrie was not present.

The Court adhered.

Counsel:

Counsel for Pursuer and Reclaimer— Party. Agents— Sturrock & Sturrock, S.S.C.

Counsel for Defenders and Respondents— Sandeman, K.C.— Wilton. Agents— Davidson & Syme, W.S.
1912