Scottish Court of Session Decisions

In this case, which has been depending in Court since 1818, a singular and important point of practice arose. In 1822 an interlocutor was pronounced by Lord Alloway, granting decree of certification contra non producta. In 1825 Captain Barton presented a reclaiming note to the First Division, setting forth that he was a creditor of the common debtor to the extent of £500, contained in a bill, and craving to be reponed against said decree of certification. Their Lordships of the First Division reponed the claimant, and remitted the case to the Lord Ordinary to receive his claim and grounds of debt. Thereafter an inventory of interest was duly lodged by the Clerk of the Inner House, but in consequence of some oversight it was not transmitted to the Clerk of the Outer House process. No farther proceedings took place in the process until 1864. The original claimant died, and in 1871 his brother lodged a minute, craving to be sisted as a party in room of his deceased brother, and to be allowed to lodge in process the inventory of interest, in terms of the Inner House interlocutor of 1825. The common agent in the Ranking, Mr Martin, W.S., objected to the claim being received, on the ground that more than forty years had elapsed since the interlocutor of the Inner House, and that it and the claim then made were both prescribed, and that the claim could not now be received into process without the authority of the Court. It was, on the other hand, maintained that the action must be held to have originally depended before the Court, and that the interlocutor of the Inner House being an interlocutor in the cause, prescription could not apply. The Lord Ordinary repelled the plea of prescription, and admitted the claim.