Scottish Court of Session Decisions

The Court of Session Act (Judicature Act) 1825 (6 Geo. IV, cap. 120), sec. 18, enacts—“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 of it to the Inner House …, provided that such party shall, within twenty-one days from the date of the interlocutor, print and put into the boxes … a note reciting the Lord Ordinary's interlocutor …, 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.”

The Act of Sederunt of 11th July 1828 provides—section 77—“That reclaiming notes … shall at first be moved merely as Single Bills, and immediately ordered to the roll …: 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. …”

Lawrence David Henderson raised an action against the then dissolved firm of D. & W. Henderson, merchants and shipowners, Glasgow, and the individual partners of the firm, and D. & W. Henderson raised an action against Lawrence David Henderson.

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On 21st February 1911 the Lord Ordinary ( Cullen) conjoined the action at the instance of D. & W. Henderson with that at the instance of Lawrence David Henderson, and on 10th June 1911 pronounced this interlocutor—“In the action at the instance of the pursuer Lawrence David Henderson against the defenders D. & W. Henderson and others, assoilzies the said defenders from the conclusions of the action, and decerns: In the action at the instance of the pursuers D. & W. Henderson and others against the said defender Lawrence David Henderson, decerns against the said defender Lawrence David Henderson, in terms of the conclusions of the action at the instance of the said pursuers D. & W. Henderson and others.”

L.D. Henderson presented a reclaiming note against this interlocutor, but in boxing the reclaiming note he only appended prints of the closed record in the action at his instance, and did not append prints of the closed record in the action at the instance of D. & W. Henderson.

When the cause appeared in Single Bills, on the motion of counsel for L. D. Henderson, that it be sent to the roll, counsel for D. & W. Henderson objected to the competency of the reclaiming note.

Argued for the respondents—The reclaiming note was incompetent, for the provisions of the Court of Session Act 1825 (Judicature Act) (6 Geo. IV, cap. 120), sec. 18, and of the Act of Sederunt of 11th July 1828, had not been complied with, and these provisions, or at least those of the statute, were not directory but imperative— M'Evoy v. Braes' Trustees, January 16, 1891, 18 R. 417, 28 S.L.R. 276; Wallace v. Braid, February 16, 1899, 1 F. 575, 36 S.L.R. 419; Blackwood v. Summers, Oxenford, & Co., May 19, 1899, 1 F. 868, 36 S.L.R. 651; M'Lachlan v. Nelson & Company, Limited, January 12, 1904, 6 F. 338, 41 S.L.R. 213.

Argued for the reclaimer—Section 18 of the Court of Session Act 1825 was merely directory and not imperative— Hutchison v. Hutchison, 1908 S.C. 1001, 45 S.L.R 783; Burroughes & Watts, Limited v. Watson, 1910 S.C. 727, 47 S.L.R. 638. The mistake was excusable in the circumstances. Alternatively the reclaimer should be allowed to reclaim under the Administration of Justice and Appeals (Scotland) Act 1808 (48 Geo. III, cap. 151), sec. 16— Tough v. Macdonald, November 24, 1904, 7 F. 324, 42 S.L.R. 180.

At advising—