Scottish Court of Session Decisions

Lord President—The Lord Ordinary's interlocutor in this case was pronounced upon January 9th. Upon the 19th of the same month he granted leave to reclaim against this interlocutor, and on the 25th a reclaiming note was lodged by the pursuer. This reclaiming-note is therefore lodged within ten days of the interlocutor granting leave to reclaim, but not of the interlocutor reclaimed against. It is, however, within twenty-one days of that interlocutor. The question is, whether this reclaiming note is not incompetent in consequence of its being lodged too late. Now, the interlocutor reclaimed against is, in my opinion, an interlocutor disposing in part of the merits of the cause. It contains findings which, so far as they go, dispose of the first conclusion of the libel. The term used in the Act of 1850, “interlocutors disposing in whole or in part of the merits of the cause,” means only interlocutors containing a decerniture which in effect disposes of a part or the whole of the merits of the cause. The question therefore is, if the interlocutor, being as I think it is of that nature, can be reclaimed against under the Act of 1850, in like manner as before the passing of that Act, whether any objection can be raised under the Court of Session Act of 1868.

The Act of 1850 introduced for the first time a limitation of the period within which a certain class of reclaiming notes should be presented. Formerly all reclaiming notes were in respect of time in the same category. But the statute provided that it should not be competent to reclaim against any interlocutor of the Lord Ordinary at any time after the expiration of ten days from the date of signing such interlocutor, with the exception only of reclaiming notes against interlocutors disposing in whole or in part of the merit of the cause, and against decrees in absence, which reclaiming note shall continue to be competent in like manner as at the passing of this Act. Now, no doubt this statute of 1850 did regulate in a very important respect the period during which reclaiming notes were to be competent. It divides them, for the first time, into two classes. The Act 1868 introduces another division, and provides that a third class of reclaiming notes shall be taken within six days, namely, those under sections 27 and 28 of that Act. There are now therefore three different classes of reclaiming notes, each competent within a different period of time. Sections 27 and 28 of the new Act have no application to the present case, but it is said that section 54 does apply, and requires this and all reclaiming notes of the same class to be taken within ten days. It does not appear to me that section 54, or indeed any sections of that Act, except 27 and 28, alter in any way the time within which reclaiming notes are to be presented. The 54th section provides that “Except in so far as provided for by the 28th section hereof, until the whole cause has been decided in the Outer House, it shall not be competent to present a reclaiming note against any interlocutor of the Lord Ordinary without his leave first had and obtained.” Now, so far, this section has nothing to do with the time within which such reclaiming note must be presented. The condition newly imported by this section is the leave of the Lord Ordinary, and it is needless to say that if the section had stopped there the time would be just exactly the same as under the former Act of 1850, except as regards reclaiming notes under section 28. But the section goes on to say, “but where such leave has been obtained, a reclaiming note presented before the whole cause has been decided in the Outer House may be lodged within ten days from the date of the interlocutor granting leave,… and such note shall not have the effect of removing the cause or the process from the Outer House, or of staying procedure before the Lord Ordinary,” &c. Now, I do not think that this part of the section was intended to alter the time within which reclaiming notes are to be lodged, even in those cases to which it applies. The language is peculiar. It says, a reclaiming note “ may be lodged,” it does not say must; nor does it say that the reclaiming note will be competent if presented within ten days from the date of the leave being granted. It merely says may be lodged, and I think there was reason for this. It then goes on to speak very particularly with regard to the effect which such reclaiming note is to have upon the conduct of the process during the dependence of the reclaiming note. I do not mean to say that the expression used is not intended to imply that the reclaiming note, when leave has been granted, shall be within ten days of the date of the interlocutor granting leave. But that is all the limitation as to time that it establishes. Now, this reclaiming note has been presented within ten days of the interlocutor granting leave, and I can see nothing to justify us in saying that this interlocutor would

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