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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kirk-Session of Wester Anstruther v. Wilkie [1868] ScotLR 5_495 (13 May 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0495.html Cite as: [1868] SLR 5_495, [1868] ScotLR 5_495 |
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Page: 495↓
An interlocutor finding it “incompetent to pronounce farther on the merits of the case,” and finding one of the parties liable in expenses, held to be an interlocutor on the merits, and a reclaiming note presented more than 10 days after the date of the interlocutor held competent.
In an action for delivery of certain writs, the Lord Ordinary ( Kinloch), in respect of a minute by the defender, and a statement by the pursuer that they accepted the offer contained in the minute, found it unnecessary to pronounce any interlocutor in the merits; appointed parties to be heard on the question of expenses; remitted to Mr Kermack to adjust a deed and thereafter pronounced this interlocutor:—
“ Edinburgh, 4th March 1868.—The Lord Ordinary having heard parties' procurators, and made avizandum and considered the process: Finds it incompetent for the Lord Ordinary to take judicial cognisance of the matter embraced in Mr Kermack's report, or to pronounce further on the merits of the present case; and, with respect to the question of expenses, Finds the defender, Mr Wilkie, liable to the pursuers in the expenses of process, subject to modification: Allows an account thereof to be lodged, and remits to the auditor to tax the same, and to report.”
The defender lodged a reclaiming note on 16th April. When the case appeared in the single bills on the meeting of the court in May,— Cook, for the respondent, objected to the competency of the reclaining note, on the ground that, not being a reclaiming note on the merits, it ought to have been presented within 10 days from the date of the interlocutor reclaimed against. He cited Cairns 14 December 1858, 21 D., 116.
Pattison for reclaimer, cited Fisher, 7th March 1851, 13 D., 906.
Lord President—I am of the same opinion.
Solicitors: Agents for Reclaimer— Macdonald & Roger, S.S.C.
Agents for Respondent— T. & R. Landale, S.S.C.
