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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bannatine's Trustees v. Cunninghame [1869] ScotLR 6_516 (25 May 1869) URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0516.html Cite as: [1869] ScotLR 6_516, [1869] SLR 6_516 |
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Page: 516↓
The Court of Session Act 1868 does not alter the period within which reclaiming notes must be presented according to the former statutes, except as to certain interlocutors specified in section 28.
In this action of count, reckoning, and payment, at the instance of the testamentary trustees of the deceased Richard Bannatine of Glaisnock, against William Allason Cunninghame, as factor and commissioner for the deceased, the Lord Ordinary on 26th March, 1869, pronounced this interlocutor—“The Lord Ordinary having heard counsel for the parties, and considered the closed record: Repels the second plea in law stated for the defender, that all parties interested are not called: Repels the first plea in law for the defender, that the pursuers have no title to sue in so far as relates to the minerals in the estate of Logan, as preliminary, but reserves the same as a defence upon the merits: Finds that the defender does not produce or found upon any valid and effectual settlement or conveyance of said minerals, or of the income from the same, by the deceased Mrs Allason Cunninghame in favour of the Miss Logans, Flatfied, during their lives, and that he has no good defence against this action in respect of such settlement or conveyance: Finds that the parties are at issue as to matters of fact bearing upon the claim of the pursuers against the defender in respect of the rents or lordship drawn for the minerals, and the price of minerals sold to the Glasgow and South-Western Railway Company, which ought to be investigated before determining any question as to the legal import and effect of the settlements or conveyances of the said estate: Appoints the cause to be put to the Motion-roll on the first sederunt-day in May next, that the parties may be heard as to the form in which such investigation shall take place, and reserves the question of expenses.”
The subsequent interlocutors were these:—
“12th May 1869.— Lord Barcaple.— Act.
Alt.—The Lord Ordinary, in respect of the absence of counsel, continues the cause till Friday first.
Page: 517↓
14 th May 1869.— Lord Barcaple.— Act. — Alt. Marshall.—The Lord Ordinary grants leave to the defender to reclaim against the interlocutor of the twenty-sixth of March last.”
A reclaiming note was boxed by the defender to the Court on 19th May 1869.
An objection was taken to the competency of the reclaiming note, as not timeously presented.
Balfour for respondent.
J. Marshall for reclaimer.
The Court took time to consider.
At advising—
The interlocutor reclaimed against is dated 26th March 1869, and the interlocutor granting leave to reclaim, without which the party could not have reclaimed, is dated 14th May. The reclaiming note is presented on the 19th May, five days after the interlocutor granting leave to reclaim, and fifty-four days after the date of the interlocutor reclaimed against. The reclaiming note, under the previous statute, would have fallen due on the second box-day in vacation, but the reclaimer relies on the peculiar phraseology of the 54th section of the statute as justifying him in presenting it at any time within ten days after the interlocutor granting leave to reclaim. Now the first point to be remarked is the long time which elapsed between the interlocutor reclaimed against and the interlocutor granting leave to reclaim, which is from 26th March to 14th May. Mr Marshall candidly admitted that the cause of this delay was a misapprehension on the part of the reclaimer as to the possibility of obtaining leave in vacation. He had forgotten or failed to observe the provision at the end of the 94th section, which provides that “such leave may be given by such Lord Ordinary, or, in his absence, by the Lord Ordinary sitting on the Bills, during vacation or recess.” But the question is, whether the reclaimer is right in holding that, if the reclaiming note is presented within ten days after the date of the interlocutor granting leave, it is of no importance how long that is after the date of the interlocutor sought to be brought under review. We are all, with one exception, of opinion that that contention is not well founded. This statute does not introduce any new rules generally as to the time of presenting reclaiming notes. It leaves the previous rules undisturbed, except as to particular interlocutors, the time for reclaiming against which is fixed by the 28th section. It has been suggested that it is probable that the construction proposed for this 54th section is consistent with the intention of the Legislature, for where no reclaiming note against an interlocutory judgment can be presented without leave, it may turn out, after some subsequent procedure in the case has taken place, that that should still be brought under review, and probably the allowance to reclaim within ten days after the date of the interlocutor granting leave is just to enable a party to reclaim after the ordinary period has elapsed, in order to the better progress of the cause. But that is of no avail to the reclaimer in the construction of the statute, for the same end may be attained in a different way under the 52d section. If it should turn out in the progress of the cause that some interlocutor, pronounced it may be a month or two previously, ought to be submitted to review, the remedy is to reclaim against the last interlocutor of the Lord Ordinary, with his leave, and that will bring up all the interlocutors, and give him the same remedy. But, apart from that, we are of opinion that that reclaiming note against this interlocutor must be presented within the usual period, and that the 64th section is only a limitation, and not an extension, of the time for reclaiming.
Lords Deas and Ardmillan concurred.
By the 28th section of the recent statute, it is provided that certain interlocutors may be reclaimed against within six days of their being pronounced. By the 54th section it is enacted, that “except in so far as otherwise provided by the 28th section hereof, 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; but where such leave has been obtained, a reclaiming note, presented before the whole cause has been decided in the Outer House, may be lodged within ten days from the date of the interlocutor granting leave.”
By the first part of this clause there is, generally speaking, an abolition enacted of all reclaiming notes anterior to the decision of the whole cause. They may still, it is provided, be presented with leave of the Lord Ordinary; and if no more was found in the statute than a general provision to this effect, they would, of course, fall to be presented within the usual reclaiming days. If it was simply intended that the leave of the Lord Ordinary should be obtained prior to the lapse of the reclaiming days, or within any definite portion of that time, it is presumable that the statute would have plainly said so by using such words as “the leave of the Lord Ordinary being always obtained prior to the said reclaiming note being presented;” or “within so many days from the date of the interlocutor intended to be reclaimed against.” But the statute provides something very different. It enacts, that “a reclaiming note presented before the whole cause has been decided in the Outer House maybe lodged within ten days from the date of the interlocutor granting leave.” I cannot read this otherwise than as enacting that a reclaiming note, presented at any time before the whole cause is decided, shall be competent if presented within ten days of obtaining leave. I think the words import this, and nothing else. And I think the fairly presumable policy of the statute infers the same result. Generally, the statute provides that no interlocutor can be brought under review prior to the termination of the cause. But a case may obviously occur, in the after progress of which it may be found necessary or expedient towards its satisfactory decision that an interlocutor previously pronounced should be brought under review, notwithstanding the lapse of the reclaiming days; in other words, that the power of reclaiming at the termination of the cause should be anticipated in the case of that interlocutor. It was I for this case, I think, that the statute intended to provide. And it provided for it, as it appears to me, by enacting that such an interlocutor might
Page: 518↓
I cannot, on any other supposition, account satisfactorily for the introduction of the enactment declaring that the period of reclaiming should be ten days from the date of the interlocutor granting leave to reclaim. If the time of reclaiming was still to be reckoned from the date of the interlocutor to be reclaimed against, this seems to me a meaningless enactment. I cannot conceive the Legislature intending a double expression of the time for reclaiming—viz., that it shall be the usual period of so many days from the date of the interlocutor, and also that it shall be ten days from the interlocutor granting leave. Nor would such a supposition admit of any sound practical working out of the enactment. By the eleventh section of the Act 13 and 14 Vict., c. 36, it was declared that all interlocutors must be reclaimed against within ten days, except interlocutors disposing, in whole or in part, of the merits of the cause; and, except in so far as affected by the general declaration in sect. 54 of the recent statute, this enactment still subsists as to all other than interlocutors provided for in sect. 28. The result is, that in regard to all such interlocutors as are final in ten days, the leave would require to be obtained at the very same time with the interlocutor being pronounced, which, in the greater number of cases, is practically impossible, and could not be intended. As to those interlocutors, again, which are not final till the lapse of twenty-one days, the leave would require to be obtained not later than the eleventh day after the date of the interlocutor; and there seems no good reason for inferring such a cessation of the power to make the application. I cannot, in these circumstances, form any other conclusion than that the words were intended to introduce a new period of reclaiming in the case of all interlocutors allowed to be brought under review before the whole cause is decided. The period runs from the date of granting leave, just because it was intended that there should be a power to reclaim after the usual reclaiming days had expired. In that event the period runs, from the necessity of the case, from the date of the interlocutor granting leave. This, I think, gives to the enactment a satisfactory and consistent meaning, not otherwise attainable.
With regard to the provision in sect. 94 of the recent statute, giving power to obtain the necessary leave during the vacation, either from the Lord Ordinary in the cause, or the Lord Ordinary on the Bills, I think its object is merely to facilitate the progress of the cause, by enabling the party to reclaim at a box-day or on the first sede-runt-day, in place of having to wait for the meeting of the Court, before he can apply for leave. This seems to me sufficiently to satisfy the presumable intendment of this clause, and to make it work in harmony with the 54th, construed as I have ventured to construe it.
Agent for Pursuers— W. K. Thwaites, S.S.C.
Agents for Defender— A. & A. Campbell, W.S.
