Scottish Court of Session Decisions

In this action the Lord Ordinary ( Kincairney) pronounced an interlocutor on 20th January 1896, in the following terms:—“Having resumed consideration of the cause … assoilzies the defenders from the whole conclusions of the summons, and decerns: Finds the defenders entitled to expenses, of which allows an account to be given in, and remits it when lodged to the Auditor of Court to tax and to report: Reserving as to modification.”

On 7th March 1896 the Lord Ordinary pronounced the following interlocutor “Approves of the Auditor's report: … Finds that the taxed amount thereof is £77, 15s. 9d., and having heard counsel on the question of modification, modifies the taxed amount to the sum of £67, 5s. 9d., and decerns against the pursuers for payment to the defenders of that amount accordingly.”

On 20th March, being the thirteenth day after the date of this interlocutor, the pursuers presented a reclaiming-note, which was objected to by the defenders as incompetent.

Argued for the defenders—Under the Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11, this was an interlocutor which could only be reclaimed against within ten days, and it had been so expressly decided in Cowper v. Callender, Jan. 19, 1872, 10 Macph. 353. No doubt a reclaimingnote against an interlocutor dealing with expenses brought the previous interlocutors under review (Crellin's Trustee v. Muirhead's Judicial Factor, Oct. 21, 1893, 21 R. 21), but that reclaiming-note must be presented within the statutory time, and Crellin had decided nothing to the contrary.

Argued for the pursuers—The reclaimingnote was competent. Crellin's Trustee ( ut sup.) had decided that an interlocutor such as this was not merely executorial, but was a final interlocutor disposing of the merits of the case, and could therefore be reclaimed against to the effect of submitting the whole case to review.— Baird v. Barton, June 22, 1882, 9 R. 970, had settled that such an interlocutor might be reclaimed against within twenty-one days. Cowper could not stand against Baird, especially as it had been decided purely on a construction of the Court of Session Act 1850, sec. 11. The ruling statutory provision here was the 53rd section of the Court of Session Act 1868.

At advising—