Scottish Court of Session Decisions

Johnstone, for the respondent, objected to the competency of the reclaiming note (1) that there was not appended to it a full copy of the answers to the suspension, as required by sect. 75 of the Act of Sederunt of 11th July 1828, which enacts “that there shall be printed and appended to every such reclaiming note a full copy of the bill, or bill and answers, and no reclaiming note shall be received or advised without having such copy annexed thereto;” and (2) that there was not appended a print of the inferior court record, as required by sect. 6 of the Act of Sederunt of 24th December 1838, which enacts that there shall be appended to the reclaiming notes “in all suspensions of final judgments of inferior judges a copy of the note of suspension, with the statement of facts and note of pleas-in-law, and the answers thereto, and also of the summons and defences, or record (if any), in the inferior court.” He cited the cases of Simpson v. Somers, 22d May 1852, 14 D. 773; and Dickson v. Shirreff, 9th June 1830, 8 S. 895.

W. N. M'Laren, for the reclaimer, argued that the Act of Sederunt of 1838 was directory only, and that it was subsequent to, and must be held to have repealed, the previous Act of 1828. But, even if the latter Act were still in force, it only required the printing of the note and answers, which had been done in this case, although, by a printer's mistake, it had been omitted to print that part of the answers containing the respondent's counterstatement of facts. He cited Meldrum v. Crichton, 1st July 1841, 3 D. 1132, and Fairman v. His Creditors, 5th December 1840, 3 D. 192.

The Lord President—I think the provision of section 75 of the Act of 1828 is in force. No doubt, under the other Act, the provision is only directory and not peremptory, and if that Act had stood alone the question here would have been different. But in the Act of 1828 there is a sanction of nullity. The only answer made is that there has been an accidental omission. I hold the counter-statement to be a part of the answers. As to the omission to print it being accidental, I am not disposed to receive that as an excuse. It is an important omission. If it be the fact that the printer made a mistake, it was the duty of the agent to correct it; and if there has been negligence on the part of the agent, I think that is a thing which we should not encourage. It is therefore our duty to refuse the note.

Lord Curriehill concurred.

Lord Deas—There is here a degree of slovenliness that we should not encourage. In the table of fees there is a charge allowed to an agent for revising proofs.

Lord Ardmillan also concurred, and said that there should be no doubt left that section 75 of the Act of 1828 is still operative.

The reclaiming note was accordingly refused as incompetent.