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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petition - David Staig [1875] ScotLR 12_469 (21 May 1875)
URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0469.html
Cite as: [1875] SLR 12_469, [1875] ScotLR 12_469

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SCOTTISH_SLR_Court_of_Session

Page: 469↓

Court of Session Inner House First Division.

Friday, May 21. 1875.

12 SLR 469

Petition—David Staig.

Subject_1Process
Subject_220 and 21 Vict., cap. 56
Subject_3Reclaiming Note.
Facts:

Held that an interlocutor by the Lord Ordinary on the Bills in vacation, pronounced in a summary petition, which during session would have come before the Junior Lord Ordinary, must be reclaimed against in eight days.

Headnote:

An interlocutor on this petition was pronounced by Lord Gifford, the Lord Ordinary officiating on the Bills, on May 7, 1875. This was reclaimed against on May 19, and on the case appearing in the single bills the respondent objected that the reclaiming note, not having been boxed within eight days, was too late.

At advising—

 Judgment:

Lord President—My Lords, I think we must refuse this reclaiming note, in respect that it is too late. It is quite possible that has been caused by a mistake, but unfortunately it is a fatal mistake. There is no doubt that this is one of the petitions to be presented to the Junior Lord Ordinary in terms of sec. 4 of the Act of 1857. Then it is provided by sec. 5 that “the judgment of the Lord Ordinary granting or refusing any such petition or application, or disposing of any such report, unless the same shall be brought under review in manner hereinafter provided, shall be equally valid and effectual as a judgment of either Division of the Court to the like effect.” Section 6 provides that “It shall not be competent to bring under review of the Court any interlocutor pronounced by the Lord Ordinary upon any such petition, application, or report as aforesaid, with a view to investigation and inquiry merely, and which does not finally dispose thereof on the merits; but any judgment pronounced by the Lord Ordinary on the merits, unless when the same shall have been pronounced in terms of instructions by the Court on report as herein-before mentioned, may be reclaimed against by any party having lawful interest to reclaim to the Court, provided that a reclaiming note shall be boxed within eight days, after which the judgment of the Lord Ordinary, if not so reclaimed against, shall be final.” Now this interlocutor was pronounced on May 7, and the reclaiming note was not boxed until May 19, and consequently after eight days. It has been said, however, that this interlocutor is one by the Lord Ordinary on the Bills, and so is a Bill-Chamber interlocutor, which may be reclaimed against within fourteen days. Now this is not a Bill-Chamber interlocutor; it is not an interlocutor is a Bill-Chamber case. The process is in the hands of one of the clerks of Session. The Lord Ordinary on the Bills in vacation comes in loco of the Junior Lord Ordinary, and in discharging his duties he is not exercising the jurisdiction of the Bill-Chamber.

The Court pronounced the following interlocutor:—

“Refuse the reclaiming note as incompetent; find the respondent entitled to additional expenses, which modify to two pounds two shillings sterling, and remit to the Junior Lord Ordinary to decern for said modified expenses along with the other expenses found due by said interlocutor.”

 Counsel:

Reclaimer's Counsel— J. Campbell Smith. Agent— Andrew Clark, S.S.C.

Respondent's Counsel— J. M. Gibson. Agents— Macnaughten & Finlay, W.S.

 1875

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URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0469.html