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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson & Co. v. Meik [1903] ScotLR 40_612 (16 May 1903) URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0612.html Cite as: [1903] ScotLR 40_612, [1903] SLR 40_612 |
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Page: 612↓
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The respondents in a note of suspension, which had been passed in the Bill Chamber and transmitted to the Court of Session, moved that the note should be dismissed in respect that prints were not lodged within eight days after the transmission of the process from the Bill Chamber.
Held that the provision of section 90 of the Court of Session Act 1868 that in a Bill Chamber proceeding, as soon as the interlocutor passing the note has become final, “the cause shall become for all purposes an action depending in the Court of Session,” did not render the rules as to the making up and printing of the record in an action depending in the Court of Session, enacted in section 26 of the Court of Session Act 1868, applicable to a note of suspension transmitted from the Bill Chamber, and motion refused.
The Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 90, enacts—“In all proceedings in the Bill Chamber, as soon as an interlocutor passing the note has become final, … the cause shall become for all purposes an action depending in the Court of Session, and may be immediately enrolled by either party in the motion roll of the Lord Ordinary to whom it is marked. … Section 26—… The pursuer shall cause the pleadings which are to form the record to be printed, and shall within eight days from the lodging of the defences or revised pleadings, as the case may be, deliver two printer's proofs thereof to the agent or to each of the agents of the other parties, and also to the Clerk to the process, who shall transmit the same to the Lord Ordinary: … Provided that, if the pursuer shall fail to deliver the printer's proofs as aforesaid, the defender may enrol the cause, and move for decree of absolvitor by default, which decree the Lord Ordinary shall grant, unless the pursuer shall show good cause to the contrary.”
Helen Jean Meik, 30 Chalmers Street, Edinburgh, presented a note of suspension and interdict against Thomson & Company and another. The note was passed in the Bill Chamber, and on February 26th the process was transmitted to the Outer House. No order was taken to print. A record was made up and prints lodged on March 13th.
Page: 613↓
On March 14th the respondents moved the Lord Ordinary to dismiss the note in respect that prints had not been lodged within eight days after transmission of the process from the Bill Chamber.
The Lord Ordinary ( Pearson) on March 14th pronounced an interlocutor refusing the motion, and appointing the cause to be put to the adjustment roll.
Opinion.—“The respondent moved that I should dismiss the note at this stage on the ground that by section 90 of the Court of Session Act, as soon as the interlocutor passing the note had become final, the cause became ‘for all purposes an action depending in the Court of Session,’ and that the complainer had failed to observe the provisions of section 26 of the Act by delivering printers' proofs within the period there specified. In an ordinary action this must be done ‘within eight days from the lodging of the defences or revised pleadings, as the case may be,’ and the failure to do so gives the defender a right to have ‘decree of absolvitor by default,’ ‘unless the pursuer shall show good cause to the contrary.’
“It is said that in the application of this provision to a passed note the eight days run from the transmission of the note, and it is admitted that the prints were not lodged within that period.
I have ascertained that the practice since 1868, and so far as I can find the invariable practice, has been to refuse to apply the provisions of section 26 to this particular case. I presume the reason is that in a process originating in the Bill Chamber other remedies are open to the respondent for proceeding with the case than are open to a defender in an ordinary action, and that the provisions of section 26 are not in terms applicable. Under section 90 the cause ‘may be immediately enrolled’ after transmission, and the respondent can obtain an order on the complainer to print, which in practice fixes the date from which the eight days begin to run.”
On March 17th the Lord Ordinary granted the respondents leave to reclaim.
The respondents reclaimed, and argued—As soon as the interlocutor passing the note became final, the cause, as provided by section 90 of the Court of Session Act 1868, became “for all purposes an action depending in the Court of Session.” The statutory rules in the Court of Session Act 1868 regulating the making up of the record in Court of Session actions accordingly applied to notes of suspension which had passed from the Bill Chamber into the Court of Session as from the date of the transmission of thenote—Mackay's Manual, p. 444. The penalty for failure to deliver printers' proofs as required by the Act was imperative, it being provided that the Lord Ordinary “shall grant decree of absolvitor” if moved for by the defender, “unless the pursuer shall show good cause to the contrary.” Though these provisions were not in terms applicable to notes of suspension passed in the Bill Chamber, yet, reading sections 26 and 90 of the Act of 1868 together, the reclaimers were entitled to a decree dismissing the note.
Counsel for the complainer and respondent was not called on.
The argument for the reclaimers was based entirely on section 26 of the Court of Session Act 1868, which provides—[ His Lordship read the section]. None of the provisions in this section are in terms applicable to the kind of proceeding which we have here—a note of suspension passed in the Bill Chamber. Accordingly, Mr Munro was driven to argue that a penalty should be provided by judicial decision for the case, a note of suspension, equivalent to the penalty provided by section 26 for failure to observe the statutory rules for making up a record in an ordinary action in the Court of Session. As the statutory rules in section 26 are not applicable to a note of suspension, we are asked to create by decision an equivalent for the provisions of that section in a case to which it does not apply. If we gave effect to the argument we should be legislating, not applying any existing law. I think the interlocutor of the Lord Ordinary is correct and that we should adhere to it.
But I think the Lord Ordinary's judgment does not need the aid of practice. It is sound on its merits. The old form of a bill of suspension was an application for permission to bring an action into Court. After the bill or note had been passed the case had to be dealt with in the same manner as an uncalled summons in an ordinary Court of Session action. The effect of the 1868 Act, sec. 90, in providing that “the cause shall become for all purposes an action depending in the Court of Session,” was simply to do away with the calling of the action and other formalities. It does not follow that the provisions of section 26 of the 1868 Act as to the making up of the record in an ordinary action are to be applied to notes of suspension. The provisions of the 1868 Act as to ordinary actions are applicable to notes of suspension only in so far as these are commensurable with ordinary actions. I therefore agree with your Lordship.
The Court adhered.
Counsel for the Complainer and Respondent— Wilton. Agent— Robert H. Wood, S.S.C.
Page: 614↓
Counsel for the Respondents and Re claimers— Munro. Agents— Macdonald & Stewart, S.S.C.
