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The defender pleaded that under the Act 1579, cap. 83, proof of the pursuer's averments should be restricted to writ or oath. The Court ( rev . the Lord Ordinary and dub . the Lord Justice-Clerk) allowed a proof habili modo, holding that the pursuer's averments elided the operation of the Act in respect that the failure of the pursuer to sue timeously was due to the conduct of the defender.
Caledonian Railway Company v. Chisholm , (1886) 13 R 773 , 23 S.L.R. 539 , followed.
Jane Inglis, Ravenscraig, Peebles, pursuer , brought an action against Alexander Bunten Smith, accountant, Pollokshields, Glasgow, defender , for payment of £850.
The defender pleaded, inter alia —“(6) Alternatively, the pursuer's claim in respect of the period from 1880 until May 1910 having prescribed, the pursuer's averments can only be proved by writ or oath of the defender.”
On 19th October 1915 the Lord Ordinary ( Anderson ) pronounced this interlocutor—“… Finds that the pursuer's claim for wages in respect of the period from 1880 until May 1910 having prescribed, her averments thereanent can only be proved by the writ or oath of the defender; quoad ultra allows the parties a proof of their averments and the pursuer a conjunct probation. …”
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