M'Larens v. Shore

Subject_1 Process Subject_2 Reclaiming-Note Subject_3 Reclaiming Days Subject_4 Court of Session (Scotland) Act 1850 (13 and 14 Vict. c. 36), sec. 11 — 6 Geo. IV., c. 120 — Interlocutor Disposing of Merits of Cause. Facts: An interlocutor was pronounced in an action decerning against the defender with expenses. The defender then lodged a minute of reference to the oath of the pursuers. Held that an interlocutor refusing to sustain the minute of reference was an interlocutor disposing of the merits of the cause, and could therefore be reclaimed against within twenty-one days.

Observed ( per Lord Shand) that if the interlocutor had sustained the minute of reference it would have been an interlocutor determining a matter of procedure, and a reclaiming-note against it must have been presented within ten days.

The Judicature Act (6 Geo. IV. c. 120) enacted that any interlocutor of a Lord Ordinary might be reclaimed against within twenty-one days.

The Act 11 and 12 Vict. c. 36, sec. 11, provides—“And be it enacted that it shall not be competent to reclaim against any interlocutor of the Lord Ordinary at any time after the expiration of ten days from the date of signing such interlocutor, with the exception only of reclaiming—notes against interlocutors disposing in whole or in part of the merits of the cause, and against decrees in absence, which reclaiming-notes shall continue to be competent in like manner as at the passing of this Act.”

This was an action at the instance of Messrs T. & W. A. M'Laren, W.S., against John Shore, sole partner of John Shore & Company, builders, Grindlay Street, Edinburgh, to recover £151, 13s . 5d. alleged to be due in respect of business charges and disbursements.