Scottish Court of Session Decisions

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), section 53, enacts—“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.…

On 28th January 1907 Mrs Murray Jardine, wife of Arthur Murray Jardine, Esquire, of Granton in the county of Dumfries, and infeft therein as trustee under a disposition and conveyance in trust, raised an action, with the consent of her husband, against the Provost, Magistrates, and Councillors of the burgh of Moffat, in which she sought declarator that the defenders were not entitled to supply water taken from the Granton estate under a certain disposition therein mentioned, except to houses within the burgh. There was a corresponding conclusion for interdict.

On 28th May 1907 the Lord Ordinary ( Mackenzie) pronounced the following interlocutor:—“… Finds and declares in terms of the declaratory conclusion of the summons, and decerns: Supersedes in the meantime further consideration of the conclusion for interdict: Finds the pursuers entitled to expenses: Allows an account to be lodged, and remits the same to the Auditor to tax and report: Grants leave to reclaim.”

The defenders reclaimed.

The reclaiming note was boxed on 17th June.

On the case appearing in the Single Bills counsel for the respondents objected to the note as not having been timeously presented, and argued—The Lord Ordinary, in order to give the burgh an opportunity of coming to some arrangement as to its water supply, had not disposed of the conclusion for interdict. The interlocutor therefore was not a final one and should have been reclaimed against within ten days.

Argued for reclaimers — Although the conclusion for interdict had meantime been superseded, the interlocutor really disposed of the whole subject-matter of the cause. That was clear from the opinion of the Lord Ordinary. [ Lord Kinnear—You cannot reclaim against his opinion.] What remained was merely executorial. That being so, this was a final interlocutor which could be reclaimed against within twenty-one days — Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 53; Kirkwood v. Park, July 14, 1874, 1 R. 1190; Caledonian Railway Company v. Corporation of Glasgow, May 17, 1900, 2 F. 871, 37 S.L.R. 672.