Scottish Court of Session Decisions

This is a petition for recal of arrestments used upon the dependence of an action of count and reckoning. The Lord Ordinary, on 15th December last, pronounced an interlocutor recalling the arrestments. A reclaiming note against this interlocutor was lodged on 4th January 1866, the box-day in the Christmas recess. The respondent objected to the competency of the note, on the ground that the 1st and 2d Vic. c. 114, section 20, required it to be lodged within ten days from the date of the interlocutor reclaimed against, and that it had been decided in Lockhart v. Cumming, 27th May 1851 ( 13 D. 996), that this provision applied even when the ten days expired before the box-day in vacation or recess. The petition for recal of arrestments had been addressed to the Lords of Council and Session, and not to the Lord Ordinary; and, on the suggestion of the Court, the reclaimer argued that this was not a competent petition under the above Act, which gives power to the Lord Ordinary to recal or restrict arrestments on the application of the debtor or defender, duly intimated to the creditor or pursuer. He also impeached the authority of Lockhart v. Cumming on the ground that it was impossible to lodge a reclaiming note before the box-day, the clerks' office not being open in vacation. The Court, without deciding either point, of consent held the petition to be now before the Inner House, and appointed parties tc be heard on the merits; but the Lord Justice-Clerk and Lord Cowan expressed a strong opinion that the address of the petition was irregular, and the interlocutor of the Lord Ordinay null, his jurisdiction not having been competently evoked. The Court then proceeded with the case upon the merits. The action is one of mutual accounting among partners, the object being to obtain a final settlement. The summons founds upon a certain state of accounts and continuation thereof, and concludes that such of the defenders—that is, the whole other partners—as shall appear on an accounting to be debtors to the pursuers, shall be decerned to make payment of the amount that shall appear to be due to them, “and that conform to the said stale of accounts and continuation thereof, or in such other manner and proportions” as may be ascertained in the course of the process—“the pursuers being always ready to make payment to the defenders, or any of them, of any balance that may be due by the pursuers to them respectively, if after such count and reckoning it shall appear that such balance is due.”