Scottish Court of Session Decisions

Section 94 of the Court of Session Act 1868 is in these terms—“It shall be lawful for the Lords Ordinary at any time in vacation or recess to sign interlocutors pronounced in causes heard in time of session … provided that when any such interlocutor is dated at or prior to the first box-day in vacation, the same may be reclaimed against on the second box-day, and when the interlocutor is dated after the first box-day, then on the first sederunt-day ensuing, or within such number of days from the date of such interlocutor as may be competent in the case of a reclaiming note against such interlocutor dated and signed during session.” …

The Distribution of Business Act 1857 provides (sec. 4) that petitions and applications under the Entail Acts shall be brought before the Junior Lord Ordinary, and (sec. 6) that “it shall not be competent to bring under review of the Court any interlocutor pronounced by the Lord Ordinary upon any such petition, application, or report as aforesaid, with a view to investigation and inquiry merely, and which does not finally dispose thereof on the merits; but any judgment pronounced by the Lord Ordinary on the merits, unless where the same shall have been pronounced in terms of instructions by the Court in manner hereinbefore mentioned, may be reclaimed against by any party having lawful interest to reclaim to the Court, provided that a reclaiming-note shall be boxed within eight days, after which the judgment of the Lord Ordinary, if not so reclaimed against, shall be final.”

In a petition by Lady Susan Grant Suttie and others, the tutors of Sir George Grant Suttie, heir of entail in possession of the lands of Preston-grange and others, to restrict provisions to younger children granted by Sir James Grant Suttie, the preceding heir of entail, in excess, as the petitioners alleged, of the amount which could be competently granted by him, the Lord Ordinary ( Kinnear), after remitting to Mr J. P. Wright, W.S., to inquire into the circumstances set forth in the petition, pronounced an interlocutor on 31st July 1883, fixing a sum as the utmost amount which could be competently granted by Sir James, and finding that the provisions made by him were, so far as in excess of that sum, null and void. The petitioners reclaimed against this interlocutor on the 13th September, the second box-day in vacation, and upon the first sederunt-day they moved that the case be sent to the roll.

The motion was objected to by the respondents, who argued that in terms of section 6 of the Distribution of Business Act 1857 the reclaiming-note should have been boxed within eight days of the date of the Lord Ordinary's interlocutor, or at all events on the first box-day. This not having been done, the interlocutor complained of had become final, and the present reclaiming-note was incompetent. Section 94 of the Court of Session Act 1868 did not apply to entail petitions.

The reclaimers argued that by section 94 of the Court of Session Act 1868 the Lord Ordinary could competently pronounce an interlocutor in vacation in a cause heard before him in session, which term “cause” included an entail petition, and that the proper time for reclaiming against the present interlocutor was the second box-day, when the reclaiming-note was duly presented, and that the case ought therefore to be sent to the roll.