Scottish Court of Session Decisions

In an action raised in the Sheriff Court at Glasgow by George W. Muir against George Mackenzie, both coalmasters in Glasgow, to have the defender ordained to deliver to the pursuer certain railway waggons, or failing that their equivalent money value, the Sheriff-Substitute ( Spens), after a proof, assoilzied the defender, finding, as matter of fact, that “pursuer never at any time had a right of property in the waggons in question,” and therefore sustaining the defender's plea to the effect that “the pursuer has no title to sue.”

On appeal the Sheriff ( Clark), on 7th July 1881, adhered, with this variation, that “instead of absolvitor being granted the action is dismissed.” The pursuer appealed to the Court of Session, and the process was received by the Clerk of Court on 26th July 1881.

On the case appearing in Single Bills after the long vacation counsel for the respondent moved the Court to dismiss the appeal on the ground of incompetency and non-compliance with the provisions of the Act of Sederunt of 10th March 1870. It appeared that the proof in the Court below consisted partly of oral evidence, which had been duly printed by the appellant along with his note of appeal, as were also the record, interlocutors, &c., but that there was also a good deal of documentary evidence, which was essential to the appellant's case, a printed copy of which had not been lodged by him along with the rest of the proof. The Act of Sederunt (10th March 1870) provides (section 3, subsec. 2) that “The appellant shall during vacation, within fourteen days after the process has been received by the Clerk of Court, deposit with the said Clerk a print of the note of appeal, record, interlocutors, and proof, if any, unless” printing shall be dispensed with, as therein provided; “and the appellant shall, upon the box-day or sederunt-day next following the deposit of such print with the Clerk, box copies of the same to the Court, … and if the appellant shall fail within the said period of fourteen days to deposit with the Clerk of Court as aforesaid a print of the papers required, … or to box or furnish the same as aforesaid on the box-day or sederunt-day next thereafter, he shall be held to have abandoned his appeal, and shall not be entitled to insist therein, except upon being reponed, as hereinafter provided.” It was urged for the respondent that the appellant's failure to print along with the oral evidence the documentary part of his proof, which was also necessary to his case, amounted to a non-compliance with the above section— Young v. Brown, 19th Feb. 1875, 2 R. 456.

At advising—