Scottish Court of Session Decisions

In an action for delivery of certain writs, the Lord Ordinary ( Kinloch), in respect of a minute by the defender, and a statement by the pursuer that they accepted the offer contained in the minute, found it unnecessary to pronounce any interlocutor in the merits; appointed parties to be heard on the question of expenses; remitted to Mr Kermack to adjust a deed and thereafter pronounced this interlocutor:—

“ Edinburgh, 4th March 1868.—The Lord Ordinary having heard parties' procurators, and made avizandum and considered the process: Finds it incompetent for the Lord Ordinary to take judicial cognisance of the matter embraced in Mr Kermack's report, or to pronounce further on the merits of the present case; and, with respect to the question of expenses, Finds the defender, Mr Wilkie, liable to the pursuers in the expenses of process, subject to modification: Allows an account thereof to be lodged, and remits to the auditor to tax the same, and to report.”

The defender lodged a reclaiming note on 16th April. When the case appeared in the single bills on the meeting of the court in May,— Cook, for the respondent, objected to the competency of the reclaining note, on the ground that, not being a reclaiming note on the merits, it ought to have been presented within 10 days from the date of the interlocutor reclaimed against. He cited Cairns 14 December 1858, 21 D., 116.