Macnab v. Nelsons [1909] ScotLR 817 (04 June 1909)

Macnab v. Nelsons [1909] ScotLR 817 (04 June 1909)

The Sheriff-Substitute was within his rights to extend the time for lodging defences after expiry of the statutory period under Rule 56; counterclaim is not competent where the original action is merely declaratory and not pecuniary.

Citation
[1909] ScotLR 817
Parties
Pursuer: John Macnab of Kinglassie, Fifeshire; Defenders: John Nelson and David Nelson
Jurisdiction
Scotland
Judgment Date
04 June 1909
Procedural Posture
Appeal From Sheriff Court / Final Judgment by Court of Session Inner House
Outcome
Interlocutors of Sheriff and Sheriff-Substitute recalled; declarator granted; action dismissed quoad ultra; expenses awarded as specified.
Legal Topics
Sheriff Court Procedure, Prorogation of Time, Counterclaim, Lease Irritancy, Declaratory Actions
Civil Procedure Landlord and Tenant Sheriff Court Procedure Prorogation of Time Counterclaim Lease Irritancy Declaratory Actions

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Parties

John Macnab of Kinglassie, Fifeshire

Pursuer

John Nelson and David Nelson

Defenders

Procedural Posture

Appeal From Sheriff Court / Final Judgment by Court of Session Inner House

Legal Issues

  1. 1 Whether the Sheriff has power under Rule 56 of the Sheriff Courts (Scotland) Act 1907 to prorogate time for lodging pleadings after expiry of the statutory period
  2. 2 Competency of counterclaim in a declaratory action where the original claim is not pecuniary

Ratio Decidendi

The Sheriff-Substitute was within his rights to extend the time for lodging defences after expiry of the statutory period under Rule 56; counterclaim is not competent where the original action is merely declaratory and not pecuniary.

Court Disposition

Interlocutors of Sheriff and Sheriff-Substitute recalled; declarator granted; action dismissed quoad ultra; expenses awarded as specified.

Orders

  • Recall interlocutors of Sheriff and Sheriff-Substitute dated 29 September 1908 and 11 July 1908
  • Find and declare in terms of the declaratory conclusion of the action