Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0507.html
Cite as: [1909] SLR 507, [1909] ScotLR 507

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SCOTTISH_SLR_Court_of_Session

Page: 507↓

Court of Session Inner House Second Division.

(Single Bills)

Thursday, March 11 1909.

46 SLR 507

Dingwall

v.

Fisher.

Subject_1Process
Subject_2Issue
Subject_3Motion to Vary
Subject_4Whether Timeously Made — Motion Lodged but not Moved within Six Days of Approval of Issue — Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 28.
Facts:

Held that a motion to vary an issue which was lodged within six days from the date of the Lord Ordinary's interlocutor approving it as the issue for the trial of the cause, but not moved till after the expiry thereof, was timeously made.

Headnote:

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), section 28, enacts—“Any interlocutor” [ relating to the allowance of proof ] “pronounced by the Lord Ordinary.… shall be final, unless within six days from its date the parties, or either of them, shall present a reclaiming note against it to one of the Divisions of the Court.…: Provided always that it shall be lawful to either party within the said period, without presenting a reclaiming note, to move the said Division to vary the terms of any issue that may have been approved of by an interlocutor of the Lord Ordinary, specifying in the notice of motion the variation that is desired.…”

Christina Dingwall, 1 Cochran Terrace, Edinburgh, brought an action of damages for slander against John Fisher, Royal Hotel, Dunkeld. On Tuesday, 2nd March 1909, the Lord Ordinary ( Guthrie) approved
Page: 508↓
of an issue. On Monday, 8th March, the defender lodged a notice of motion to vary the issue. The case appeared in the Single Bills on Wednesday, 10th March, but was continued till Thursday, 11th March, when the pursuer objected to the competency of the motion to vary the issue.

Argued for the pursuer—The motion to vary the issue was incompetent. The Court must be moved to vary the issue within six days of the interlocutor approving thereof. It was not enough that the notice of the motion had been lodged within the six days— Craig v. Jex-Blake, March 16, 1871, 9 Macph. 715, 8 S.L.R. 428. Though the interlocutor in this case was pronounced on 2nd March, the case did not appear in the Single Bills until the 10th March, and the motion was therefore too late.

Argued for the defender— Esto that the six days expired on Sunday, 7th March, the notice of motion which was lodged on Monday, 8th March, was lodged in time. It was immaterial that the Court had not been moved until after the expiration of the six days.

Judgment:

Lord Justice-Clerk—This objection must be repelled. The last day on which notice of the motion to vary the issue could be given was Monday the 8th. The notice was lodged in process on Monday, and that, I think, is sufficient. When it is lodged, the putting of it out in Single Bills is a matter of procedure which is attended to by the Court, and, according to the usual practice a notice which is lodged on Monday does not come out in Single Bills till Wednesday.

Lord Low and Lord Ardwall concurred.

Lord Dundas was absent.

The Court repelled the objection.

Counsel:

Counsel for the Pursuer— A. J. P. Menzies. Agent— James Wilkie, S.S.C.

Counsel for the Defender— Jameson. Agent— William C. Morris, Solicitor.
1909

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