Kennedy v Macrae
| Jurisdiction | Scotland |
| Judgment Date | 09 January 1946 |
| Date | 09 January 1946 |
| Docket Number | No. 16. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Keith.
ProcessProof before Lord OrdinaryAllowance of proofProof habili modoOwnership of War Stock registered in defender's nameTrust or loan or donationWhether mode of proof appropriate.
ProcessReviewReclaiming motionFunction of reclaiming motionMatters involving no alteration of interlocutor.
In an action which concluded, first, for declarator that certain War Stock of which the defender was the registered holder was the property of the pursuer, the pursuer made averments to the following effect:The pursuer had for many years assisted the defender by making him an allowance; ultimately, being the proprietor of the stock now in question, he had decided that it would save trouble if the interest on the stock, which was roughly equivalent to the amount of the allowance, could be paid direct to the defender; believing that for this purpose it was necessary that the capital should for the time be put in the defender's name, he had transferred the stock to the defender, and a new certificate had thereafter been issued and delivered to the defender; the pursuer now required the income for his own use, but the defender had refused to re-transfer the stock, alleging that he had received it as a gift.
The Lord Ordinary having allowed parties a proof habili modo of their averments, the defender, in view of an indication of opinion by the Lord Ordinary to the effect that parole proof might be competent in relation to the first conclusion, reclaimed and contended that proofquoad that conclusion should be restricted to the defender's writ or oath, in respect that the conclusion was in substance a declarator of trust or of loan.
Held that the interlocutor allowing proof habili modowas both competent and appropriate, in respect that it did not decide that parole proof was competent, but reserved the question for the Lord Ordinary's decision during the course of the proof, and that accordingly the defender was amply protected against the introduction of incompetent evidence.
Observed that reclaiming motions are competent only for the purpose of obtaining modification of an interlocutor, and are not competent for the purpose merely of bringing under review incidental observations in the relative opinion.
The Reverend Farquhar Kennedy brought an action against Murdo Macrae (his cousin german) for declarator "that the sum of 1015, 15s. 9d., originally 5 per cent War Stock 19291947, now 3 per cent War Stock, of which the defender is the registered holder, is the property of the pursuer." The action contained ancillary conclusions for delivery or payment, and also an independent conclusion for repayment of a sum which the pursuer averred that he had advanced to the defender as a loan.
In regard to the War Stock the parties made the following averments:(Cond. 3) "For many years the pursuer has been in the way of benevolently assisting the defender. For a number of years, while the defender was a crofter at Craig aforesaid, that...
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Forbes v Forbes's Trustees
...he was not bound by the opinion of the Lord Ordinary who had allowed the proof. Dictum of Lord President Normand in Kennedy v. Macrae, 1946 S. C. 118, at p. 123, Mrs Diana Burrell De Ker Knox Or Forbes, with the consent and concurrence of her husband, Lieutenant-Colonel William John Herbert......
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Petition Of James Gerad Moore For Judicial Review Of A Decision Of The Scottish Solicitors' Discipline Tribunal Dated 24 October 2014
...as the court was not a debating chamber. [45] In support of the above he referred to observations of the court in Kennedy v MacRae 1946 SC 118: “… reclaiming motions are competent only for the purpose of obtaining modification of an interlocutor, and are not competent for the purpose merely......
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...Park Rangers Football and Athletic Club Ld.ELR, [1952] 2 Q. B. 918, Lloyd-Jacob J. at p. 921. 14 [1951] A. C. 443; 32 T. C. 211. 15 1946 S. C. 118. 16 15 and 16 Geo. VI and 1 Eliz. II, cap. 17 [1968] A. C. 483. 18 [1951] A. C. 443; 32 T. C. 211. 19 [1964] 1 W. L. R. 1073; [1964] 2 All E. R.......
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Pickard v Pickard. Pickard v Rice
...the reclaiming motions. 1 Gloag on Contract, (2nd ed.) p. 389. 2 Maclaren, Court of Session Practice, p. 552; Kennedy v. MacraeSC, 1946 S. C. 118, Lord President Normand at p. 1 Maclaren, Court of Session Practice, p. 523. 2 Mackenzie Stuart on Trusts, p. 17. 3 Dickson on Evidence, vol. i, ......