Scottish Court of Session Decisions

Section 94 of the Court of Session Act 1868 (31 and 32 Vict. cap. 100) enacts—“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 or at any extended sittings or at the trial of causes by jury or by proof before the Lord Ordinary; provided that where 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 where 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 sighed during session. … Provided that in the case of an interlocutor which cannot be reclaimed against without the leave of the Lord Ordinary, such leave may be given by such Lord Ordinary, or in his absence by the Lord Ordinary sitting on the Bills, during vacation.”

The Act of Sederunt of 14th March 1894 enacts—“That in all cases where the days allowed for presenting a reclaiming—note against an interlocutor pronounced by a Lord Ordinary in the Outer House expire during any vacation, recess, or adjournment of the Court, such reclaiming—note may be presented on the first box-day occurring in said vacation, recess, or adjournment after the reclaiming days have expired; and if there be no such box-day, then on the first ensuing sederunt day.”

An action of declarator and interdict was raised by the Countess of Seafield and others, proprietors of lands on the banks of the river Spey, against Mr Robert Kemp, distiller, Elgin, concluding for declarator that the pursuers were entitled to have the water in a fit state for primary purposes, and craving the Court to interdict the defender from polluting the river by discharges from his distillery.

The case having been heard during session, the Lord Ordinary ( Kyllachy) on 25th March 1898—which date was within the spring vacation—pronounced an interlocutor by which he disposed of the declaratory conclusions of the summons, superseded in the meantime consideration of the conclusion for interdict, and granted leave to reclaim.

The defender lodged a reclaiming-note on the 28th April, being the second box-day in vacation, the first having been on 7th April. The pursuers, on the case being called in Single Bills, objected to the competency of the reclaiming-note, on the ground that it ought to have been lodged upon the first box-day, the reclaiming days having expired upon the 5th of April. They argued that the 94th section of the Court of Session Act had in contemplation final interlocutors which could be reclaimed without leave, not interlocutory judgments which could be reclaimed against only within ten days. The last class, of which the present case was one, fell under the provisions of the Act of Sederunt of 1894. If it did not apply, the result of section 94 of the Court or Session Act would be to extend greatly the time for reclaiming, and the defender would have thirty-three days instead of ten in which to reclaim.

[In answer to a question from the Lord President, counsel for the defender stated that the Act of Sederunt had been passed in consequence of the decision in the case of Mackenzie v. Lucas & Aird, February 15, 1894, 1894, 21 R. 544. Counsel for the defender was not called upon.]