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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Evoy. v. Braes [1891] ScotLR 28_276 (16 January 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0276.html Cite as: [1891] ScotLR 28_276, [1891] SLR 28_276 |
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Page: 276↓
A Lord Ordinary having dismissed an action after hearing parties, the pursuer, who was suing in forma pauperis, reclaimed, but failed to append to the reclaiming-note a print of the record, the printing of which had been dispensed with in the Outer House. When the reclaiming-note appeared in Single Bills, the reclaimer moved the Court to dispense with printing and send the case to the roll.
Held that the reclaiming-note was incompetent, a print of the record not having been appended thereto in terms of section 18 of the Judicature Act, and section 77 of the relative Act of Sederunt, 11th July 1828.
Michael M'Evoy, labourer, Bo'ness, suing in forma pauperis, raised an action against John Braes, grocer, Linlithgow. In the Outer House printing was dispensed with.
On 11th December 1890 the Lord Ordinary ( Wellwood) “having considered the debate, together with the process,” sustained certain of the defender's pleas and dismissed the action.
The pursuer printed and boxed a reclaiming-note against this interlocutor, but did not append thereto a print of the record.
When the reclaiming-note appeared in Single Bills, the pursuer moved the Court to dispense with printing and send the case to the roll for discussion.
The defender objected to the competency of the reclaiming-note, on the ground that a print of the record was not appended thereto, and argued—The provisions of the Judicature Act and of the relative Act of Sederunt were imperative on this point. If the reclaimer desired a dispensation from printing, he ought, before lodging his reclaiming-note, to have presented a note craving the Court to grant such dispensation—Judicature Act 1825 (6 Geo. IV. c. 120), sec. 18; A.S., 11th July 1828, sec. 77; Miller v. Simpson, December 9, 1863, 2 Macph. 225; Muir v. Muir, October 17, 1874, 2 R. 26.
The pursuer argued—The provision of the Judicature Act was directory, not imperative. The pursuer could not have moved the Court to dispense with printing sooner than he did, as until the reclaiming-note was boxed the process was not before the Court. The procedure suggested by the defender related only to appeals from inferior courts, which are regulated by the 1868 Court of Session Act and relative Act of Sederunt. If it was held that his reclaiming-note was incompetent because a print of the record was not appended thereto, the practical result would be that a person suing in forma pauperis would never be able to bring an adverse judgment of the Lord Ordinary under the review of the Inner House— Campbell's Trustees v. Campbell, March 7, 1868, 6 Macph. 563; Wilson v. Stark, February 17, 1844, 6 D. 692.
At advising—
That question depends on the construction of the 18th section of the Act 6 Geo. IV. cap. 120, and section 77 of the Act of Sederunt of 11th July 1828. Section 18 of the statute provides—“That when any interlocutor shall have been pronounced by the Lord Ordinary, either of the parties dissatisfied therewith shall be entitled to apply for a review to the Inner House of the Division to which the Lord Ordinary belongs; provided that such party shall, within twenty-one days from the date of the interlocutor, print and put into the boxes appointed for receiving the papers to be perused by the Judges, a note reciting the Lord Ordinary's interlocutor, and praying the Court to alter the same in whole or in part; and if the interlocutor of the Lord Ordinary shall have been pronounced on cases, the party applying for a review shall, along with the note as above directed, print and put into the boxes the cases which have been before the Lord Ordinary; and if the interlocutor has been pronounced without cases, the party so applying shall, along with his note as above directed, put into the boxes printed copies of the record authenticated as before, and shall at the same time give notice of his application for
Page: 277↓
The Act of Sederunt does not superadd any additional condition or penalty. It merely makes a regulation which gives force and effect to the statutory provision. That regulation is contained in the 77th section of the Act of Sederunt, and is in these terms—“Provided always, that such notes, if reclaiming against an Outer House interlocutor, shall not be received unless there be appended thereto copies of the mutual cases, if any, and of the papers authenticated as the record, in terms of the statute if the record has been closed.” … Now, that is a mere direction to the Clerk of Court to give effect to the statutory provision by refusing to receive a reclaiming-note when the record is not appended thereto. Taking the statute and the Act of Sederunt together, it appears to me that there is no room for doubt or hesitation as to the meaning or practice or as to the force of the Act of Sederunt. Accordingly, we find that it has been decided over and over again that any failure to comply with these provisions is quite fatal. The first case on the point is the case of Brown v. Moodie, 17 Jur. 568, in which the failure consisted in the summons and defences not being appended, while the closed record was. That was in the time—before 1850—when the revised condescendence and answers formed a separate paper. The original summons and defences were part of the record, but it also consisted of the revised condescendence and answers. The case accordingly shows that the whole record must be appended in order to comply with the statute. In two cases the reclaimers failed to box the record at all, viz.— National Exchange Company v. Drew & Dick, Nov. 16, 1860, 22 D. 27, and Bell v. Ogilvie, January 28, 1862, 24 D. 375—and there the statutory provision was held imperative, and the want of the record was held to be fatal. The cases even go further, for in Carter v. Johnston, February 6, 1847, 9 D. 598, the record was closed upon the original summons and defences and pleas-in law for the pursuer, and the omission to print the pursuer's pleas as part of the record was held to be fatal. Then there is another case illustrative of the same principle, and giving effect to it in somewhat hard circumstances— Muir v. Muir, Oct. 17, 1874, 2 R. 26. In that case an extensive amendment on the record had been made in the Outer House in writing, and the record appended to the reclaiming-note was the original printed record with the addition of the amendment in MS., and the omission to print the amendment was held fatal to the reclaiming-note, though it looked like a mere piece of inadvertence. Besides the cases I have mentioned, there have been various others to the same effect, and it seems to me impossible to dispute that the practice has been uniform, and I think it would be spending judicial time idly if we were to have further argument upon the matter. This is a reclaiming-note against the judgment of a Lord Ordinary pronounced in foro, and the closed record is an indispensable appendage to the reclaiming-note, without which the reclaiming-note cannot be received.
The Court refused the reclaiming-note as incompetent.
Counsel for the Pursuer— Cosens. Agent— A. Gordon Petrie, S.S.C.
Counsel for the Defender— M'Lennan. Agent— Thomas Liddell, S.S.C.
