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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir & Son, Ltd v. Edinburgh and Leith Corporations Gas Commissioners [1906] ScotLR 43_598 (22 May 1906) URL: http://www.bailii.org/scot/cases/ScotCS/1906/43SLR0598.html Cite as: [1906] ScotLR 43_598, [1906] SLR 43_598 |
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Page: 598↓
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Section 62 of the Court of Session Act 1868 is as follows:—“The third section of the Act 29 and 30 Vict. cap. 112 [Evidence (Scotland) Act 1866] is hereby amended to the effect of providing that, notwithstanding the terms of said section, ‘where proof shall be ordered by one of the Divisions of Court,’ it shall no longer be competent to remit to one of the Lords Ordinary to take such proof, but it shall be taken before any one of the Judges of the said Division, whose place may for the time be supplied by one of the Lords Ordinary called in for that occasion.”
During the debate on a reclaiming note presented by the defenders against an interlocutor of the Lord Ordinary in favour of the pursuers pronounced after proof, the pursuers obtained leave to amend their record and the defenders to answer the amendment. Thereafter, the defenders having moved to be allowed to lead additional proof, the pursuers contended that under the section set forth above it could only be taken by one of the Judges of the Division, a remit to the Lord Ordinary being incompetent.
The Court remitted to the Lord Ordinary to take further proof and to report.
Muir & Son, Limited, having brought an action of damages against the Edinburgh and Leith Gas Commissioners, the Lord Ordinary ( Ardwall) after proof gave judgment in their favour.
The defenders reclaimed.
In the course of the hearing the pursuers obtained leave to amend their record and the defenders to answer the amendments. The defenders then moved the Court to allow them to lead additional proof. The Court indicated their opinion that the proof should be allowed, and proposed to remit the case to the Lord Ordinary.
Pursuer's counsel drew their Lordships' attention to section 62 of the Court of Session Act 1868, and to the case of Rowatt, &c. v. Brown, February 18, 1886, 13 R. 576, 23 S.L.R. 397, and contended that the additional proof could only be competently taken by a Judge of the Division, a remit to the Lord Ordinary being made expressly incompetent by section 62 of the Court of Session Act 1868, and being further inconvenient, as it might lead to a multiplication of processes, for if the Lord Ordinary revised his judgment after hearing further proof a new reclaiming note would be necessary.
The Court pronounced this interlocutor—
“The Lords allow the answers for the defenders to be received: Open up the record: Allow the minute of amendment and the answers to be added to the record and of new close it: On the motion of the defenders remit to the Lord Ordinary to allow them a further proof in respect of the said minute and answers, and the pursuers a conjunct probation, and to report—the proof to be taken by the said Lord Ordinary not earlier than 16th October next.”
Counsel for the Pursuers— Guthrie, K.C.— Constable. Agents— Finlay & Wilson, S.S.C.
Counsel for the Defenders— Lord Advocate (Shaw, K.C.)— J. D. Millar. Agent— James M'G. Jack, S.S.C.
