Scottish Court of Session Decisions

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Cite as: [1896] ScotLR 34_264, [1896] SLR 34_264

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SCOTTISH_SLR_Court_of_Session

Page: 264↓

Court of Session Inner House First Division.

Friday, January 15. 1896.

[ Lord Kyllachy, Ordinary.

34 SLR 264

Burns' Trustees

v.

Waddell & Son.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Competency
Subject_4Interlocutory Judgment — Court of Session Act 1868 (31 and 32 Vict. Cap. 100), secs. 28, 53, 54.
Facts:

An interlocutor of a Lord Ordinary which does not dispose of the question of expenses is not a final judgment in the sense of section 53 of the Court of Session Act 1868.

Baird v. Barton, June 22, 1882, 9 R. 970, followed.

Page: 265↓
A reclaiming-note against an interlocutor of the Lord Ordinary not falling within the provisions of section 28 of the Court of Session Act 1868, and presented without leave, will not be entertained by the Court even with consent of parties.

Headnote:

The trustees of the late Michael Burns, coalmaster, Edinburgh, tenants of Maulds-lie coalfields, Lanarkshire, raised an action against their sub-tenants, Messrs Waddell & Son, coalmasters, Glasgow, concluding for relief of the sum of £550 claimed from the pursuers by the proprietor of the coalfield in respect of alleged damages caused by improper working, and resulting in the loss of certain quantities of coal. The action was sisted till the proprietor's claims were constituted by arbitration, as was required under the principal lease. The arbitration is still in dependence, but as regards the claim for lost coal the landlord offered to accept the sum of £275, along with one-half of the fees of arbiter and clerk in full of the claim. The defenders tendered these sums to the pursuers, and claimed on payment being made to be assoilzied. The pursuers, however, maintained that the defenders were bound to relieve them of their expenses in the arbitration as well as of the damages.

The Lord Ordinary ( Kyllachy) on 10th July 1896 pronounced the following interlocutor:—“In respect it is not disputed that the landlord Sir Windham Charles James Carmichael Anstruther has offered to accept payment of the sums mentioned in the minute of tender No. 20 of process, as in full of the claims to which this action relates, Finds that on payment or consignation of the sums tendered in said minute, the defenders will be entitled to absolvitor; and in order that such payment or consignation may be made, continues the cause.

The pursuers reclaimed without obtaining the leave of the Lord Ordinary, the reclaiming-note being boxed on August 13th. They argued that the reclaiming-note was competent, because the Lord Ordinary's interlocutor in effect disposed of the whole merits of the case on the footing of the tender. The respondents made no objection to the competency of the reclaiming-note, and expressed their willingness to discuss the case on the merits.

Judgment:

Lord President—In my opinion this reclaiming-note is incompetent, and it is our duty to dismiss it. The Court of Session Act 1868 says in peremptory terms that except in the way provided by the 28th section of the Act, 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. By express decision of the Court in the case of Baird v. Barton, June 22, 1882, 9 R. 970, an interlocutor does not fall within that class unless it disposes of expenses, by which I mean, not that it decides the amount of expenses payable, but that it deals with and determines the question of the liability of one or other of the parties for expenses. Now, this interlocutor contains no such element, but is distinctly what may be called an interlocutory judgment. What then is our duty? The parties may think it convenient that we should go on and decide this question, but it does not fall within the scope of the official duties which we hold the Queen's Commission to perform. Our official duty is to try cases which are competently brought before the Court. This is not a case of that kind, and it would be contrary to our duty to spend time which is dedicated to lawsuits upon voluntary arbitration.

Lord Adam—I am of the same opinion. The Legislature has laid down rules for the conduct of business in the Court of Session, and one of them is that a reclaiming-note against an interlocutory judgment of a Lord Ordinary, except within a certain time and subject to certain regulations, is incompetent. This interlocutor is shown, by the case of Baird v. Barton, to be not a final judgment but an interlocutory judgment. There was a mode by which within a certain time a reclaiming-note might competently have been presented if the leave of the Lord Ordinary had been obtained. The parties did not follow that course, and I am altogether adverse to the idea that we should proceed on the assumption that if the Lord Ordinary's leave had been asked he would have given it.

Lord M'Laren—I quite appreciate the position which Mr Mackenzie has taken up, that he does not think that it is in the interests of his client to take exception to the reclaiming-note being proceeded with. It is unfortunate that the proper course has not been followed and the leave of the Lord Ordinary asked. If I may hazard an opinion, I have very little doubt that leave would have been given by the Lord Ordinary, for the interlocutor, if not technically, at least substantially, disposes of the whole merits of the case. But we are bound by the conditions of the statute, and as our attention was called to the omission we have no alternative.

Lord Kinnear concurred.

The Court refused the reclaiming-note as incompetent.

Counsel:

Counsel for the Pursuers— Guthrie— T. B. Morison. Agent— P. Morison, S.S.C.

Counsel for the Defenders— C. K. Mackenzie— J. Wilson. Agents— Graham, Johnston, & Fleming, W.S.
1896