Scottish Court of Session Decisions

Section 5 of the A.S., 2d November 1872, provides:—“Within four days from the date of the interlocutor closing the record, the agent for the pursuer, or for the party appointed to print the record, shall lodge with the clerk to the process two printed copies of the record as finally adjusted and closed…. And failing the said agent lodging such copies within the prescribed period, the clerk shall record such failure by a note on the interlocutor-sheet… . And failing the two copies of the printed record being lodged as aforesaid the cause shall be deleted from the debate or procedure roll as the case may be, and shall be restored to the roll only on motion made to the Lord Ordinary by any party to the cause lodging the said two printed copies as aforesaid: Provided that if none of the parties to the cause move the Lord Ordinary to restore the same to the roll and lodge the two printed copies as aforesaid within twenty-one days of the date of the interlocutor closing the record, the Lord Ordinary shall pronounce an interlocutor dismissing the action and finding neither party entitled to expenses, which shall not be recalled by the Lord Ordinary of consent, but may be recalled only in the manner and on the conditions foresaid.”

Francis Dickson, C.A., liquidator of the Gael Iron Company (Limited), raised an action of count, reckoning, and payment against Robert Orr, commission agent, residing at 8 Tower Hill, London, who had been an agent for the company. The defender, besides pleading on the merits that he was not indebted to the pursuer, and had not refused to account, pleaded that the Court of Session had no jurisdiction. The Lord Ordinary on 19th November 1884 closed the record and sent the case to the Procedure Roll. On the 24th the pursuer wrote to the defender's agent in these terms:—“The record, I understand, falls to be printed and boxed to-day, and before the further expense of printing is incurred I am willing to meet you to see if we cannot come to an arrangement.” The proposed arrangement was to remit the case to an accountant. On the same day the defender's agent replied refusing to refer the matter. The letter concluded thus—“To talk of remitting the whole matters in dispute to an accountant is somewhat premature, as until the defender's plea of no jurisdiction is disposed of adversely to him there is nothing to refer.” The case was put out on Saturday 6th December (being the seventeenth day from the closing of the record) in the Lord Ordinary's Procedure Roll for the following week. No prints of the closed record had been lodged, and no marking had been made by the clerk on the interlocutor-sheet as required by the Act of Sederunt. On Tuesday (9th December) the defender's agent inquired at the office of the clerk to the process in the Register House whether prints had been lodged, and was told that he could not say for certain that they had, as the process was in Court, but that he believed they had. On Wednesday 10th December, the twenty-first day after the closing of the record, the defender's agent for the first time learned that the prints had not been lodged. The matter was brought under the notice of the Lord Ordinary on the morning of Thursday the 11th, when his Lordship pronounced this interlocutor:—“The Lord Ordinary, in respect of the pursuer having failed to lodge two printed copies of the record as finally adjusted and closed, in terms of the Act of Sederunt 2d November 1872, appoints the cause to be deleted from the Procedure Roll.”

The defender's agent then had the adjusted record printed, and on Tuesday 16th December, being more than21 days after the record was closed, moved the Lord Ordinary to restore the case to the Procedure Roll, tendering two prints. His Lordship pronounced this interlocutor:—“The Lord Ordinary having heard counsel, in respect parties have failed to lodge two printed copies of the record as finally adjusted and closed, within twenty-one days of the date of the interlocutor closing the record, in terms of the Act of Sederunt 2d November 1872, dismisses the action: Finds neither party entitled to expenses, and decerns.”

The defender reclaimed, and moved the Court to remit the case to the Lord Ordinary to restore it to the roll. He submitted that in the circumstances this should be done without any condition as to expenses. The Lord Ordinary, he stated, would have reponed him if he had had the power, and he desired to be reponed in order to move for expenses against the pursuer.

The pursuer argued that the motion should not be granted in respect the difficulty had been caused by the defender's own neglect. The pursuer did not in any event mean to persevere with the action, but to abandon it and bring a new one, so that the whole question was one of expenses.

At advising—