Copeland v Lord Wimborne
| Jurisdiction | Scotland |
| Judgment Date | 20 January 1912 |
| Date | 20 January 1912 |
| Docket Number | No. 59. |
| Court | Court of Session |
Lord Guthrie, Lord Justice-Clerk, Lord Dundas, Lord Salvesen.
ProcessReclaimingEffect of reclaiming note in bringing prior interlocutor under reviewInterlocutor importing appointment of proofFinalityCourt of Session Act, 1868 (31 and 32 Vict. cap. 100), secs. 28, 52Act of Sederunt, 10th March 1870, secs. 1 (3) and 2.
Held that a reclaiming note against a judgment of the Lord Ordinary, disposing of the cause, did not submit to review under sec. 52 of the Court of Session Act, 1868, a prior interlocutor appointing proof which had not been reclaimed against within six days, in respect that that interlocutor had become final under sec. 28 of that Act, and secs. 1 (3) and 2 of the Act of Sederunt, 10th March 1870.
On 25th November 1910 Walter Charles Copeland, barrister-at-law, brought an action against the Right Honourable Ivor Bertie, Baron Wimborne, concluding for payment of the sums of 700, 899, and 3500.
The pursuer averred that in 1900 the defender employed him to perform certain services in connection with the publication of The Rock, a newspaper in which the defender was interested and which ceased to exist in 1905. The sums sued for were for services rendered and disbursements made on the authority, as was alleged, of the defender.
The defender pleaded, inter alia;(3) The pursuer's averments can only be proved by the writ or oath of the defender.
On 26th October 1911 the Lord Ordinary (Guthrie) pronounced this interlocutor:Sustains the defender's third plea in law, and 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.*
On 10th March 1911 Lady Wimborne was appointed the receiver to administer the defender's estate under an order of the Masters in Lunacy in England, and on 9th November 1911 a medical certificate was lodged (No. 112 of process), certifying that the defender, on account of his mental state, was unable to be examined on any subject, and that there was no prospect of an improvement in his health.
The pursuer produced no writ of the defender other than certain letters enclosing money in answer to appeals for help in carrying on The Rock.
On 9th December 1911 the Lord Ordinary pronounced the following interlocutor:The Lord Ordinary 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, No. 112 of process, 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: Finds no expenses due to or by either party.
The pursuer reclaimed, and the case was heard before the Second Division (without Lord Guthrie) on 18th and 20th January 1912.
Argued for the pursuer;The pursuer was entitled to a proof of his averments prout de jure. His averments were relevant, and there was nothing of an unusual or anomalous nature about the contract between himself and the defender1: it was an ordinary contract of agency. The interlocutor of 26th October was brought under review by the present reclaiming note, by virtue of section 52 of the Court of Session Act, 1868.* Even if the proof were restricted the defender
should not be assoilzied, for though he could not emit on oath, his letters, enclosing money for carrying on the newspaper, were sufficient written proof of the...
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