Scottish Court of Session Decisions

The charger M'Kenzie raised an action in the Sheriff–Court of Ross–shire against the suspender M'Ivor. A record was made up by revised condescendence and answers, and was then closed. Afterwards it was alleged by M'Kenzie that it was necessary to state matter which was res noviter veniens. A note was given in by him craving leave to state this new matter, which the Sheriff allowed to be done. A condescendence and answers as to this new matter were then put in. The Sheriff did not open up the old record, or cause the record to be closed as to the new matter. He then gave judgment on the merits of the cause in favour of M'Kenzie, and in his interlocutor expressly founded on the matter contained in the last–mentioned condescendence and answers.

The decree was extracted, and a charge was given by M'Kenzie, of which M'lvor presented a bill of suspension. The bill was passed, on caution, and the suspender pleaded, inter alia, that the Sheriff's judgment was irregularly and incompetently pronounced, as the record embracing the new matter ought to have been closed before judgment on the merits was given. In support of this plea he contended that by the Judicature Act, relative to the Court of Session, which directed (§ 10.) the final adjustment and closing of a record, and forbade the addition of any after averment except in the case of res noviter veniens; the statute ordered that the statement of such new matter, where allowed by the Court, should be “in the shape of a specific condescendence framed as above,” and with a note of pleas; and that the adverse party should “put in his answer to such condescendence and pleas, to be adjusted, and made part of the record as before directed.” This was immediately followed by the enactment (§ 11.) “that the pleas stated on the record, and authenticated as before directed, shall be held as the sole grounds of action or of defence, &c.” In the relative Act of Sederunt, 11th July, 1828, § 59, the only provision was, that, “when either party wishes to state on the record, matter of fact noviter veniens ad notitiam,” he shall give certain notice as there prescribed. Under these enactments it was the uniform practice of the Court of Session to adjust and close a record, relative to matter noviter veniens, as conclusively, as the original record was adjusted and closed; and no other course was consistent with the purpose and provisions of the Judicature Act. In framing the A. S. for the Sheriff–Court, the object was to follow out one main purpose of the Judicature Act, and introduce regulations and practice, as to closing the record, similar to those in the Supreme Court. Accordingly after the enactments requiring a record to be made up and closed, it was provided (§21) that if a statement of new matter on the record was afterwards allowed, such new matter should “be stated in the shape of a specific condescendence, framed as above; and the adverse party shall, in such case be ordered, within a reasonable time, to put in his answers to such condescendence.” Under these enactments the same course was substantially prescribed, as that which was enjoined in the Court of Session. And as an opposite course had here been followed, the judgment which was pronounced was irregular, and the charge following on it should be suspended.

The charger answered, that, the Act of Sederunt, and not the Judicature Act, was the sole rule for the form of process in the Sheriff–Court; and the Act of Sederunt contained no provision, making it imperative that the statement of new matter, after a record was closed, should occasion the adjusting and closing of a second record. Neither did it contain an express general enactment (as the Judicature Act did, § 4) that no cause should be decided on the merits without first closing a record. The A. S. merely enjoined, in the case of res noviter veniens, after a record had been closed in common form, that a condescendence and answers should be lodged; and that order had been complied with. These papers, when lodged, made part of the record of the inferior court, and there was no warrant for requiring more. If it were deemed expedient, for the future, that a record should be closed wherever new matter was allowed to be stated on the record of the Court, that should be provided for by a new A. S.; but there was no warrant under the existing A. S. for setting aside the judgment of a Sheriff, merely because he had not closed the record as to new matter, in the same manner as the original record; and he had not been enjoined to do so. And if such judgment were to be pronounced, it would affect the decrees in Sheriff–Courts to a very serious extent. The reasons of suspension ought therefore to be repelled.

The Lord Ordinary reported the case verbally.