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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gardner v. Kessack [1868] ScotLR 6_389 (27 February 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0389.html
Cite as: [1868] SLR 6_389, [1868] ScotLR 6_389
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SCOTTISH_SLR_Court_of_Session
Page: 389↓
Court of Session Inner House Second Division.
v.
Facts:
Mistake by a Sheriff-substitute in making up a record under the Act 16 and 17 Vict. c. 80, held not to invalidate the procedure so as to justify the action being dismissed. Remit made to the Sheriff to make up a record of new.
This was an appeal from an interlocutor of the Sheriff of Banffshire, dismissing an action in respect of irregularities committed in the course of making up the record.
The Sheriff Court Act, 16 and 17 Vict. c. 80,
4, makes certain provisions for the adjustment and closing of records; and in this case, in terms of that section, it was necessary to have closed the record on the 8th April 1868, or to have adjourned the meeting for closing for eight days, and then closed. In place of taking this course, the Sheriff-substitute, on 8th April, simply ordered answers to the defender's statement, and this order was afterwards prorogated on 6th May. The Sheriff-principal held that, in these circumstances, the whole proceedings, commencing with 8th April, were inept; and, as he could “ devise no scheme for taking up the broken thread at the point where the stitch was deserted, which would not be an evasion of the Act of Parliament,” he dismissed the action.
Shand for appellant.
Asher in answer.
The Court recalled this judgment, and held that it was competent in the circumstances to order a new record to be made up. They accordingly remitted to the Sheriff for that purpose, and to proceed in the cause as might be just.
Solicitors: Agent for Appellant— David Milne, S.S.C.
Agent for Respondent— David Cook, S.S.C.