Scottish Court of Session Decisions

This was an objection to the competency of a reclaiming note founded on section 12 of the Act of Sederunt, 24th December 1838, which enacts as follows:—“As it is provided by section 77 of the Act of Sederunt, 11th July 1828, that when any of the proceedings or documents in a cause have once been printed and boxed to the Judges, it shall not be necessary at any subsequent stage of the cause to box the same again, but only to refer to them; and this regulation having been found inconvenient after a lapse of time, it is therefore enacted that this regulation shall be held to apply only to proceedings or documents which have been boxed within two years previous to the date at which they shall be again referred to, after which printed copies of the former proceedings shall be boxed or furnished to the Judges of the Inner House, before which the cause may be again brought.” In this case no documents had been boxed for more than two years, and the reclaiming note was presented bearing a reference to the documents formerly boxed, but these had not been again boxed or furnished to the Judges of the Division. It was therefore objected that the note was incompetent, The cases of Thomson v. Forbes ( 9 D. 1061) and Fraser v. Lovat ( 20 D. 1185) were cited. It was answered that the enactment founded on was a mere provision for the convenience of the Judges with which the opposite party had no concern; and the reclaimers were ready, if necessary, to furnish the Judges with fresh copies of the previous documents.

The Court repelled the objection. It was observed that the two cases cited seemed inconsistent with each other; but in the latter case the general question raised by the present objection had been fully considered and disposed of. The respondent was found liable in £5, 5s. of expenses.