Scottish Court of Session Decisions

Lord President—The question argued depends upon the construction of section 3, sub-sections 2 and 3, of Act of Sederunt, 10th March 1870. That Act of Sederunt was made under the authority of 31 and 32 Vict. cap. 100, section 106, which gave power to the Court to make alterations in the statutory procedure, so that the provisions of the Act of Sederunt have very much the same imperative character as if they had occurred in the statute itself. The 2nd sub-section of sec. 3 contains an imperative direction in the following terms—[ His Lordship quoted the sub-section].

If the Act of Sederunt had merely directed certain things to be done within a specified time, there might have been ground for contending that the Court had power to grant some indulgence in the case of failure. But there is no room for this suggestion in the present case, because the Act of Sederunt, after directing what is to be done, specifies the consequence of failure, viz., that the appeal shall be held to be abandoned. I think that in a case where it is thus provided that the appeal shall be held to be abandoned if certain things are not done, there is no power in this Court to dispense with these things. Then sub-section 3 gives a further chance to a person who has failed to comply with the requirements of sub-section 1, providing that “it shall be lawful for the appellant, within eight days after the appeal has been held to be abandoned as aforesaid, to move the Court during session, or the Lord Ordinary on the Bills during vacation, to repone him to the effect of entitling him to insist in the appeal; which motion shall not be granted by the Court or the Lord Ordinary except upon cause shown, and upon such conditions as to printing and payment of expenses to the respondent or otherwise, as to the Court or Lord Ordinary shall seem just.” These provisions seem to me to reflect light upon sub-section 2, confirming the view that that sub-section did not leave it in the power of the Court to dispense with the observance of its provisions. The Legislature (or the Court in vice of the Legislature) foresaw that cases of hardship might arise under the provisions of sub-section 2, and provided a remedy, but in order to prevent laxity in practice declared that that remedy should only be granted upon cause shown. The Act of Sederunt carefully regulates every stage of the procedure, and I think in these circumstances we have no power to dispense with the observance of its provisions.

Lord Adam—I am of the same opinion. It is quite true that provisions of Acts of Sederunt have not been treated so rigidly as if they formed part of an Act of Parliament. Accordingly, in certain cases dealing with Acts of Sederunt we have dispensed with strict observance, but it does not follow that these rules and regulations are to be treated as if they had no authority at all. It is only on good cause shown that we have relieved a litigant from the consequences of non-observance of the provisions of Acts of Sederunt. Now here the section we are dealing with of the Act of Sederunt of 1870 provides that if the papers are not printed and boxed within the time specified, then, by force of the provision itself and without the intervention of the Court, the appeal shall be held to have been abandoned. But the Act itself gives a remedy where the appellant has neglected to lodge his prints, and then the intervention of the Court comes in. He may under sub-section 3 of section 3 apply within eight days to be reponed, and such application may be granted on cause shown. It would therefore have been open to us to repone the appellant if he had made his application in time. But he is too late to apply for this remedy, and has failed to observe both the sub-sections. He says now he makes no motion; he merely says we are not to hold that the action has been abandoned. Even if the matter was in our discretion, the appellant cannot by neglecting both sub-sections be in a better position than if he had applied to us under subsection 3. But if he had done so, we could not have granted dispensation unless upon cause shown. Now there is no suggestion of any good cause why the prints were not lodged in time. It is no excuse that the agent for the appellant had neglected to box the prints by an oversight. All litigation is conducted by agents, and if they fail in their duty the client who employs them must just take the consequences.

Lord M'Laren—I hold with your Lord-ships that there may be a distinction between the effect of a provision of an Act of Parliament and those of an Act of Sederunt, which is intended to regulate the procedure under an Act of Parliament, and is passed under the authority of the Act. But I agree that this appellant is not in a position to take benefit by the distinction. Where an Act of Parliament specifies the number of reclaiming days or days for an appeal, it is held that this is a condition of the right of appeal, and that after these days have expired the party no longer has a right of appeal. But where an Act of Sederunt, treating it may be the whole subject of an action in its successive stages, deals with the element of time, it would be too rigorous a construction of its provisions to hold that in the event of failure to comply with any one of them the party must lose his case. Accordingly in certain cases the Court has allowed things to be done after the prescribed time on being satisfied that the failure arose per in-curiam. In the present case the Act of

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