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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Blackwood v. Summers, Oxenford, & Co. [1899] ScotLR 36_651 (19 May 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0651.html Cite as: [1899] ScotLR 36_651, [1899] SLR 36_651 |
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Page: 651↓
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A reclaiming-note against an interlocutor of a Lord Ordinary refused as incompetent, in respect that a printed copy of the record was not appended thereto, although copies of the record were appended to the prints of the reclaiming-note boxed to the Judges.
M'Evoy v. Brae's Trustees, 18 R. 417, followed.
This was a reclaiming-note by the defenders against an interlocutor of the Lord Ordinary (Kincairney) pronounced in an action raised by Robert Angus Blackwood against Summers, Oxenford, & Company.
The defenders did not append a printed copy of the record to the reclaiming-note, but the copies of the reclaiming-note boxed to the Court had printed copies of the record appended to them.
The Judicature Act 1825 (6 (Geo. IV. cap. 120), sec. 18, after declaring that either of the parties dissatisfied with an interlocutor
Page: 652↓
pronounced by a Lord Ordinary may apply for a review of it within twenty-one days by printing and putting into the boxes a reclaiming-note, enacts—“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.” The Act of Sederunt, 11th July 1828, sec. 77, provides that reclaiming-notes 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.”
The pursuer objected to the competency of the reclaiming-note on the ground that the requirements of the Judicature Act and the Act of Sederunt 1828, had not been complied with in respect that a printed copy of the record had not been appended to the reclaiming-note.— M'Evoy v. Brae's Trustees, January 16, 1891, 18 R. 417; and Wallace v. Braid, February 16, 1899, 36 S.L.R. 419, referred to.
The defenders argued that the provisions of the Judicature Act and the Act of Sederunt were directory, not imperative— Allan's Trustee v. Allan & Sons, October 23, 1891, 19 R. 15; and that the case of Wallace, ut sup., was distinguished from the present by the fact that there copies of the record had not been boxed to the judges. The defenders also cited Campbell's Trustees v. Campbell, March 7, 1868, 6 Macph. 563; and Harris v. Haywood Gas Coal Company, May 12, 1877, 4 R. 714.
At advising, the opinion of the Court was delivered to the following effect by
The Court refused the reclaiming-note as incompetent.
Counsel for the Pursuer— Guy. Agent— William Fraser, S.S.C.
Counsel for the Defenders— M. P. Fraser. Agent— John Martin, L.A.
