Scottish Court of Session Decisions

An objection was taken to the competency of a reclaiming note, on the following ground:—On July 8, 1868, the Lord Ordinary pronounced an interlocutor in the cause, against which none of the parties reclaimed. On July 23, 1872, certain of the claimants in the multiplepoinding moved the Lord Ordinary for immediate payment of a share of the fund in medio. This motion was refused, on the ground that it could not be competently granted, having regard to the terms of the prior interlocutor of July 8, 1868, which had rendered the whole cause res judicata, whereas the Lord Ordinary was practically now asked to reconsider his judgment.

Against this latter interlocutor refusing the motion, leave was given to reclaim on July 30, 1872.

For the reclaimer it was argued—The Act 31 and 32 Vict. cap. 100, sec. 52, runs as follows:—“Every reclaiming note, whether presented before or after the whole cause has been decided in the Outer House, shall have the effect of submitting to the

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review of the Inner House the whole of the prior interlocutors of the Lord Ordinary of whatever date, not only at the instance of the party reclaiming, but also at the instance of all or any of the other parties who have appeared in the cause, to the effect of enabling the Court to do complete justice, without hindrance from the terms of any interlocutor which may have been pronounced by the Lord Ordinary, and without the necessity of any counter reclaiming note; and after a reclaiming note has been presented, the reclaimer shall not be at liberty to withdraw it without the consent of the other parties as aforesaid; and if he shall not insist therein, any other party in the cause may do so, in the same way as if it had been presented at his own instance.”

This enables the reclaimer to bring under review the interlocutor of July 8,1868, as well as the subsequent one.

The respondents argued, that under § 28 of the same Act, the interlocutor of July 8, 1868 could not be brought under review, because it had become “final.” The section is as follows:—“Any interlocutor pronounced by the Lord Ordinary as provided for in the preceding section, except under sub-division (1), shall be final, unless within six days from its date the parties, or either of them, shall present a reclaiming note against it to one of the Divisions of the Court, by whom the cause shall be heard summarily; and when the reclaiming note is advised, the Division shall dispose of the expenses of the reclaiming note, and of the discussion, and shall remit the cause to the Lord Ordinary to proceed as accords: Provided always that it shall be lawful to either party within the said period, without presenting a reclaiming note, to move the said Division to vary the terms of any issue that may hate been approved of by an interlocutor of the Lord Ordinary, specifying in the notice of motion the variation that is desired: Provided also that nothing herein contained shall be held to prevent the Lord Ordinary or the Court from dismissing the action at any stage upon any ground upon which such action might at present be dismissed according to the existing law and practice.”

Authorities quoted— Bannatyne's Trs. 7 Macph. 813; Scheniman, June 25, 1828, 10 S. 1019; Forbes, 10 S. 374; Matthew, 6 D. 718.

The Court, before disposing of the question raised, appointed Counsel to be heard on the merits.