Macaskill v Nicol
| Jurisdiction | Scotland |
| Judgment Date | 06 November 1942 |
| Docket Number | No. 3. |
| Date | 06 November 1942 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Fleming. Lord Patrick.
ProcessReclaimingEffect of reclaiming motion in bringing prior interlocutors under reviewInterlocutor granting diligence to recover documents reclaimed againstPrior interlocutor appointing proof before answer not reclaimed againstFinality of prior interlocutorCourt of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 52Rules of Court, 1936, Chap. V, Rules 2 (d) and 4 (b).
The Court of Session Act, 1868, enacts, by sec. 52, that every reclaiming note shall have the effect of submitting to review the whole of the prior interlocutors of the Lord Ordinary.
The Rules of Court, 1936, Chap. V, provide, by Rule 4 (b), that an interlocutor allowing or refusing proof, or limiting the mode of proof, may be reclaimed against not later than the fourteenth day after it was pronounced.
Following upon an interlocutor of the Lord Ordinary allowing a proof before answer, which was not reclaimed against, diligences were granted for the recovery of documents at the instance of the defender and of the pursuer respectively. On a reclaiming motion by the defender against the interlocutor granting the pursuer's diligence, the reclaimer sought also, under sec. 52 of the Court of Session Act, 1868, review of the interlocutor which had allowed the proof.
Held that this interlocutor could not be reviewed on the reclaiming motion in respect that it had not been reclaimed against within the prescribed time limit and was final, and, further, had been acted upon by the parties as the basis of subsequent proceedings.
Allan Macaskill, farmer, Tullich, Killin, Perthshire, brought an action against (first) Arthur Forbes Nicol of Kilninver, Argyllshire, and (second) Sir William Crawford Currie and others, the trustees of the deceased Miss Katharine Auld Mackinnon of Ardmaddy Castle, Oban, in which he claimed payment of a sum of money.
On 15th May 1942, the Lord Ordinary (Patrick), after a hearing in Procedure Roll, pronounced an interlocutor allowing a proof before answer, which was not reclaimed against, and on 2nd July 1942 he granted diligence against havers at the instance of the first defender, Nicol, for the recovery of documents called for by him. On 14th August 1942, Lord Fleming, as vacation judge, granted diligence at the instance of the pursuer for recovery of documents called for by him under another specification, and he granted leave to reclaim. A reclaiming motion against Lord Fleming's interlocutor was thereafter lodged by Nicol.
When the case was called before the Second Division on 6th November 1942, counsel for the reclaimer stated that he desired to take advantage of the reclaiming motion to have the Lord Ordinary's interlocutor of 15th May 1942 reviewed. Objection was taken by counsel for the pursuer on the ground that, as that interlocutor had not been reclaimed against within fourteen days, it could not competently be submitted to review under the reclaiming motion now before the Court.1
At advising on 6th November 1942,
LORD JUSTICE-CLERK (Cooper).On 15th May 1942, Lord Patrick pronounced an interlocutor in this case allowing to the parties a proof before answer of their respective averments, and appointing the proof to proceed on 20th October. On 2nd July 1942, on the application of the defender, Lord Patrick granted diligence for recovery of documents conform to a specification lodged by the defender. On 14th August 1942, Lord Fleming, as vacation judge, granted diligence at the instance of the pursuer for recovery of documents called for in another specification, and granted leave to reclaim, meantime staying execution on that interlocutor. A reclaiming motion...
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