Scottish Court of Session Decisions

Mrs Isabella Gray or Spence, assistant in the Carlton Hotel, Edinburgh, pursuer, brought an action against Lockhart James Spence, medical student, 17 Archibald Place, Edinburgh, defender, concluding for declarator of marriage. Before the record was closed the pursuer by minute craved leave to amend the summons by adding an alternative conclusion for damages for breach of promise and seduction.

The Lord Ordinary ( Dewar) on 23rd June 1914 pronounced the following interlocutor:—“… Refuses said minute; … continues the adjustment of record …; and grants leave to reclaim.”

Against this interlocutor the pursuer reclaimed, and on the case appearing in Single Bills counsel for the defender objected to the competency of the reclaiming note.

Argued for the defender—It would have been incompetent for the Lord Ordinary to

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grant leave to reclaim before the record was closed. The interlocutor meant therefore leave to reclaim after the closing of the record. There was no case in which a reclaiming note prior to the closing of the record had been held competent. Assuming that it was competent a reclaiming note at that stage was highly inconvenient, and that alone was sufficient ground for refusing it— Brown v. Virtue & Company, Limited, July 16, 1889, 16 R. 987, 26 S.L.R. 675. Without refusing the reclaiming note as incompetent the Court could supersede consideration of it till the record was closed by the Lord Ordinary—Codifying Act of Sederunt, 1913, D, 1, 3. Reference was also made to the Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 5; the Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 28 and 54; and the Codifying Act of Sederunt, 1913, D, 1, 2.

Argued for the pursuer—A reclaiming note at the present stage was competent and convenient. It was always the right of a litigant to reclaim unless that right was expressly or by necessary implication excluded— Harper v. Inspector of Ruther-glen, October 29, 1903, 6 F. 23, 41 S.L.R. 16, per Lord Trayner. In a suspension a reclaiming note might be presented before the record was closed. Reference was also made to the Court of Session Act 1868 ( cit.), sec. 54 and the Codifying Act of Sederunt, 1913, D, 1, 2.