Mathieson v Scottish Trade Protection Society

JurisdictionScotland
CourtCourt of Session
Judgment Date07 December 1898
Date07 December 1898
Docket NumberNo. 102.,No. 43.
Court of Session
1st Division

Lord Kincairney, Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 102.
Mathieson
and
Scottish Trade Protection Society.

Process Issues Adjustment Report by Lord Ordinary to Inner-House Court of Session Act, 1850 (13 and 14 Vict. cap. 36), sec. 38 Court of Session Act, 1868 (31 and 32 Vict. cap. 100), secs. 27 and 28 A. S. 10th March 1870, sec. 1, subsec. 5.

By the Court of Session Act, 1850, sec. 38, if issues could not be adjusted of consent of parties, the Lord Ordinary was to report the matter to the Inner-House, by whom such issue or issues shall upon such report be adjusted and settled.

This procedure was superseded by the Court of Session Act, 1868, sec. 27 (as modified by the A. S. 10th March 1870), and sec. 28, under which the Lord Ordinary is to adjust issues, subject to a reclaiming note or a motion to a Division to vary issues. Section 38 of the Court of Session Act, 1850, was repealed by the Statute Law Revision Act, 1875.

On 21st January 1898 a Lord Ordinary pronounced an interlocutor disallowing the issue proposed by the pursuer in a cause. The pursuer having thereafter proposed an amended issue, the Lord Ordinary on 1st February pronounced an interlocutor refusing the pursuer's motion to lodge the amended issue, and reporting the cause to the First Division in terms of the Court of Session Act, 1850.

Held that sec. 38 of the Act of 1850 having been repealed, the Court had no power to deal with the interlocutors already pronounced in the Outer-House, and cause remitted to the Lord Ordinary to proceed.

On 11th October 1897 Donald Mackay Mathieson raised an action of damages for slander against the Scottish Trade Protection Society, Edinburgh.

On 7th December the Lord Ordinary (Kincairney) closed the record and assigned Tuesday 14th December for the adjustment of issues.

The pursuer having proposed an issue, the Lord Ordinary on 14th December intimated that he was not prepared to allow that issue, and the pursuer accordingly withdrew it. The Lord Ordinary then pronounced an interlocutor continuing the adjustment of issues till Tuesday 4th January 1898.

The pursuer having proposed an amended issue, on 7th January the Lord Ordinary, having heard counsel on the adjustment of issues, made avizandum.

On 21st January the Lord Ordinary pronounced this interlocutor:Having considered the proposed amended issue for the pursuer, No. 22 of process, disallows the same.

The pursuer then proposed another amended issue.

On 1st February the Lord Ordinary pronounced this interlocutor:Refuses the motion of the pursuer to lodge the amended issue proposed by him: Reports the cause to the First Division of the Court, in terms of the Statute 13 and 14 Vict. cap. 36, and relative Act of Sederunt of 15th July 1865: Appoints the pursuer to print and box this interlocutor, together with the relative papers, to the Court; and grants warrant for enrolling the cause in the Inner-House rolls.

On the cause coming out for hearing on the report, the defenders objected to the competency of the report on the ground that the statute and relative Act of Sederunt on which the Lord Ordinary's interlocutor bore to proceed had been repealed in so far as the adjustment of issues was concerned, and that procedure with respect to the adjustment of issues was now regulated by the Court of Session Act, 1868, and Act of Sederunt, 10th March 1870.*

Argued for the defenders;The Court of Session Act, 1850, sec. 38, having been repealed, and the procedure of the Court of Session Act, 1868, and the Act of Sederunt, 10th March 1870, substituted, the Lord Ordinary's report was incompetent to the effect of bringing the question of the adjustment of issues before the Court. It was no doubt open to a Lord Ordinary to report a question as to the adjustment

of issues in order that he might obtain the instructions of the Court before he himself pronounced an interlocutor on the subject; but once he had pronounced an interlocutor allowing or disallowing the issues proposed he was functus in the matter of the adjustment of issues; the only way thereafter of bringing that matter before the Court was by a reclaiming note, or by a motion to vary issues. The pursuer not having reclaimed against the interlocutor disallowing his issue within the six days allowed by section 28 of the Act of 1868 had lost his remedy; all that could be done now was to dismiss the action; the concluding clause of section 28 made that clear. The pursuer really maintained that he was entitled to go on indefinitely getting the decision of the Lord Ordinary on successive issues until he happened to propose one of which the Lord Ordinary approved. Such procedure was out of the question.

Argued for the pursuer;The Lord Ordinary's interlocutor was undoubtedly pronounced under a misapprehension. What his Lordship ought to have done was to have allowed the pursuer to put in his amended issue, and then to have heard a discussion upon it, and decided as to its admissibility. That ought to be done now; and the Court ought to remit to the Lord Ordinary with instructions to do so.

Lord President.This case has strayed out of the procedure prescribed by the Act of 1868. It may be well at the outset to notice that not only has section 38 of the Act of 1850 been superseded by the procedure prescribed by the Act of 1868, but it has been repealed by one of the Statute Law Revision Acts, and therefore we have to consider this question from the point of view of the Act of 1868. Now, I take it to be clear that the Act of 1868, as modified by the Act of Sederunt of 10th March 1870, contemplates that the parties shall lodge issues, and that the Lord Ordinary, dealing with the averments of the parties, shall adjust issues, if he considers that there is issuable matter on record, either at the time of proof being appointed in the cause, or on a day to be fixed not later than eight days thereafter. I am not saying that it is not perfectly competent for the Lord Ordinary to continue the discussion on the adjustment of issues, or to suggest that the issue lodged may not undergo such essential changes as to make it in substance a new issue, and that it may not be therefore convenient in the course of adjustment to have the remodelled issue in a clean draft before adjustment. But the statutory system is that the Lord Ordinary, having begun, must go through the work of adjusting issues and then quit it. It seems entirely inconsistent with the procedure prescribed by the Act that he should proceed...

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