Scottish Court of Session Decisions

Lord President—The objection here is that this reclaiming-note should have been presented within ten days of the date of the interlocutor reclaimed against. The objection is founded on the 11th section of the Act of 1850, which provides—“That it shall 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 merits of the cause, and against decrees in absence, which reclaiming-notes shall continue to be competent in like manner as at the passing of this Act.” Now, the question is whether the interlocutor before us disposes in whole or in part of the merits of the cause? As matters stood under the Act of 1850 it might have been difficult to say that a decision upon a mere question of expenses could in any sense be called “disposing in whole” of the merits of the cause. But in the Act of 1868 a material alteration has been made upon the phraseology. In the first place, the 52d section, in explaining the effect of a reclaiming-note against a final judgment, provides that “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 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.” Then in the following section, the 53d, we have a definition of what is to be deemed a final judgment in the Outer House—the only judgment which can be brought under review without the leave of the Lord Ordinary, except in a few specified cases, such as interlocutors allowing proof. The section provides—“It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary which either by itself or taken along with a previous interlocutor or interlocutors disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all the questions of law or fact raised in the cause; but it shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.” Now, it is to be observed that the words used in the 1868 Act are the “whole subject-matter of the cause,” whereas the words made use of in the Act of 1850 are “whole merits” of the cause. And although it may be a question whether expenses can be said to form part of the merits of the cause, it may very well be held that they are a part, and often a very important part, of the “subject-matter” of the cause. This change of language, therefore, seems to me on that account of great importance, and when we go on the matter is made very clear, for the statute in the 54th section provides by the clearest implication, until the question of expenses is determined no final judgment can be pronounced, and if so, then the “whole subject-matter” of the cause, in the language of the statute, has not been disposed of. In short, until the question of expenses has been determined, the “whole subject-matter” has not been finally disposed of, and until such final disposal there can be no review. It appears to me accordingly that the subject-matter of the case was not finally disposed of till the interlocutor of the 2d June, and consequently that the appellant is within the time allowed by the statute.

Lords Deas and Shand concurred.

Loud Mure was absent.