Scottish Court of Session Decisions

This was an appeal from the Sheriff-Court of Lanarkshire under the Court of Session Act, 1868. The process and note of appeal were received by the Clerk on 9th January 1875, and duly marked by him of that date. The appellant on 22d January timeously printed, boxed, and lodged with the Clerk a print of the record, proof, and interlocuors, and on the following day the case was in the, Single Bills, and, no objections being stated by the respondent, was sent to the roll. It was afterwards discovered that the appellant in his print omitted to include the note of appeal itself, which is a separate paper, and not on the interlocutor sheet, the 66th section of the Court of Session Act, 1868, permitting the appeal to be minuted in either way. The appellant, on 16th February 1875, printed, boxed, and afterwards lodged an appendix containing the note of appeal. To-day a note for the respondent was moved in the Single Bills praying that, in respect the appellant had failed to print the note of appeal in terms of the Act of Sederunt of 10th March 1870, section 3 (sub-section 1), the appeal should either be dismissed or the Clerk instructed to retransmit the process to the Sheriff-Clerk, with the necessary certificate of abandonment, in terms of the 3d section (sub-section 5) of the said Act of Sederunt. After hearing counsel for both parties, the Court unanimously held, that as the present omission to print the note of appeal is not an infringement of any of the provisions of the statute itself, it was within the discretion of the Court to relax the provisions of the Act of Sederunt on cause shown that the omission to print some part of the papers required to be printed was an oversight—the Lord President stating that the present objection was a very narrow and critical one. The Court pronounced the following interlocutor:—

“The Lords having considered the note for respondent, No. 20 of process, and heard counsel for both parties, refuse the prayer of said note; hold the omission to print, box, and lodge the note of appeal obviated by the print appendix of 16th February current, now lodged, containing the note of appeal; but find the appellant liable in the expenses of the said note, No. 20 of process, and the discussion thereon, which modify to £3, 3s., and for which decern against the appellant for payment to the respondent.”