Scottish Court of Session Decisions

Henry Campbell, 4 Mary Street, Port-Dundas, Glasgow, pursuer, brought an action of damages against Osborne & Hunter, electrical engineers, 99 Douglas Street, Glasgow, defenders. On 18th February 1913 the Lord Ordinary ( Skerrington) approved of an issue and fixed a diet for the trial of the cause. On 20th February, on the motion of the pursuer, the Lord Ordinary discharged the diet, and appointed the cause to be tried at the sittings in the ensuing vacation.

No.109 of the rolls of the Court of Session for the Winter Session 1912-13,issued on 28th February 1913,contained notice of the sittings of the Court for the trial of civil causes by jury in the ensuing vacation. Annexed to the notice was the note which is quoted in the rubric. The Act of Sederunt November 19, 1910, referred to in the note, so far as pertinent to the present question, is also quoted in the rubric.

The pursuer's agent, in terms of the Act of Sederunt, transmitted the process to the Clerk of the Division. On 5th March 1913, within office hours, but after twelve o'clock noon, he tendered to the Keeper of the Rolls a copy of the Lord Ordinary's interlocutor of 20th February, and prints of the closed record and of the adjusted issue. The said copy interlocutor and prints were refused by the Keeper of the Rolls upon the authority of the note already referred to. Thereafter the rolls of Court containing the list of causes for trial at the sittings was issued and the case was not included in the list.

The pursuer presented a note to the Lord President, praying him “to move the Court to grant authority to the Keeper of the Rolls to receive the said copy interlocutor and print, and thereafter to include the present cause in the list of causes for trial at the forthcoming sittings,… and to publish the name of the same in the appropriate rolls of Court, or otherwise to postpone the hearing in the present cause from the forthcoming sittings for jury trials till a date to be afterwards fixed, and to remit the cause to the Lord Ordinary with power to fix of new a diet for the trial of the cause.”

On 8th March counsel for the pursuer, in Single Bills, moved the Court to grant the first branch of the prayer, and argued —On a sound construction of section 3 of the Act of Sederunt November 19, 1910, “forthwith” appearing in the first part of the section did not fall to be read into the latter part thereof. So far as regarded the Act of Sederunt, the papers were therefore lodged timeously, and the note in the rolls of Court could not add a condition to their reception which was not in the Act.

The Court, without giving opinions, pronounced this interlocutor:—