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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pringle v. Dunsmure [1877] ScotLR 14_498 (1 June 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0498.html
Cite as: [1877] SLR 14_498, [1877] ScotLR 14_498

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SCOTTISH_SLR_Court_of_Session

Page: 498↓

Court of Session Inner House Second Division.

Friday, June 1.

[ Lord Craighill, Ordinary.

14 SLR 498

Pringle

v.

Dunsmure.

Subject_1Process
Subject_2Proof
Subject_3Leave to Appeal to House of Lords.
Facts:

Where the Inner House allowed proof before answer, and the competency of proof was not impugned, leave to appeal to the House of Lords refused.

Headnote:

This was an action of reduction at the instance of Andrew Pringle, Edinburgh, against Mrs Grace Dunsmure or Turnbull, widow and executrix of the deceased W. B. D. D. Turnbull, advocate and barrister-at-law. The pursuer sought to have two deeds reduced; one of which had been, he alleged, obtained from him by Mr Turnbull by fraudulent misrepresentation and concealment, and the other by similar conduct on the part of the defender or of her and her agent. A record was made up and issues adjusted by the Lord Ordinary. Both parties thereupon moved the Court to vary the issues allowed, and the defender also reclaimed against the interlocutor approving of the issues, and maintained that the action was irrelevant, The pursuer moved for leave to amend the record, and this was allowed in the form of a revised condescendence, to which the defender put in revised defences. After further hearing, the Court allowed a proof before answer, and ordered the same to be taken before Lord Ormidale. Against this interlocutor the present motion was made for leave to appeal to the House of Lords.

Argued—The Court exercised its discretion here wrongly, as the case was one of fraud, turning entirely upon the evidence of two witnesses.

At advising—

 Judgment:

Lord Justice-Clerk—In this case there is an order for proof standing, and an order which was to be obtempered without delay. In such circumstances it is out of the question to allow an appeal. Whether a case is to be sent to a jury or is to be tried by a proof is a matter entirely within the discretion of the Court, and that discretion has been in this case exercised by making an order for proof before answer.

Lord Ormidale—I do not understand that the

Page: 499↓

pursuer disputes the competency of the order for proof already made by the Court. The only question before your Lordships refers to a matter of procedure, the determination of which is certainly within the discretion of the Court. It would be absurd to grant leave to appeal against an order pronounced by a Court in the exercise of its discretion, whether such an order should be pronounced or not. It might be reasonable to ask for leave to appeal when the competency of the order was doubtful, or if reasonable grounds of appeal could be shown, or if the order were in point of procedure one made for the first time, but no one of these grounds can here be shown, and I am accordingly for refusing the motion.

Lord Gifford—It cannot be doubted that it is within the discretion of the Court to determine whether a case shall go to a jury or be tried before a judge. I think the motion should be refused.

Motion refused, with three guineas of expenses.

 Counsel:

Counsel for Pursuer— J. C. Smith—Brand— M'Kechnie. Agent— T. Spalding, W.S.

Counsel for Defender— Fraser—Balfour—Rhind. Agents— Hill & Fergusson, W.S.

 1877

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URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0498.html