Scottish Court of Session Decisions

Lord Justice-Clerk—In any case under an Act of Sederunt in which omission to comply with its provisions without doing prejudice to anybody would shut out a party from carrying on his case altogether, we always show our sympathy with such party by looking narrowly to see if we must enforce the Act of Sederunt. In a recent case where prints were through inadvertence lodged after the time specified in an Act of Sederunt, and there was no interest in anyone to have them lodged early, we held with difficulty, but after consulting the Judges of the other Division, that we were not bound to enforce the Act of Sederunt. In that case had we sustained the objection to the competency of the appeal the Sheriff-Substitute's judgment would have became final, but here the pursuer does not lose the power of prosecuting her case by the appeal being held incompetent. The only difference will be that she will lose her right to come here and get a jury trial, but she may proceed in the Court in which she raised her action. She will suffer no real prejudice. She may prefer a trial by jury, but she can still proceed, and after trial before the Sheriff-Substitute may appeal to the Sheriff, and eventually to this Court. She will therefore get her case fairly heard and disposed of, and I do not look with any favour on this case as one of hardship.

The Sheriff-Substitute pronounced an interlocutor allowing a proof, which was appealed to the Sheriff, who dismissed the appeal. Thereby the Sheriff-Substitute's interlocutor allowing proof became final, and from that date the pursuer had fifteen days to intimate an appeal to this Court. She did not during the fifteen days lodge such an appeal, but went to the Sheriff-Substitute and asked him to fix a diet for proof. He by interlocutor fixed a day, but that was not an interlocutor disposing of any question between the parties. It was merely an interlocutor as to when the proof should be taken.

I should have held, apart from the authorities, that the date of the interlocutor allowing proof is the date from which the fifteen days must run, because after that it is fixed there is to be a proof, and the mere question of when is of no material interest to the parties. If I had had any hesitation in the matter I could have had none after the cases of Kinnes and of Duff, which are on all fours with the present one. They have fixed that the fifteen days are to be counted from the date of the interlocutor allowing proof, or from the date of such interlocutor becoming final by an appeal from it being refused. I am therefore for holding the appeal incompetent.

Lord Young—This is an interesting matter, and that must be my excuse for saying what I am about to say. The meaning of this Act of Sederunt has been determined, and we cannot go back upon that. The date from which the fifteen days run is the date of the interlocutor allowing proof, but I am and have always been of opinion that wherever considerations of good sense and of justice require that we should give relief from the terms of an Act of Sederunt, and wherever such relief may be given to one party without hardship to the other we may give it, and that is quite settled by the case of Boyd, Gilmour & Company. In that case there was a miscalculation as to the proper date for lodging prints, and if the appeal had been refused as incompetent the Sheriff-Substitute's judgment would have became final in a specimen case brought to try important questions, and which it was intended to take to the House of Lords. To have held in such a case that this Court could not give the relief sought for would have been to hold an Act of Sederunt the most ridiculously powerful of all things, and that rules which we have made for our own guidance bind us even to refrain from doing what we may think good sense and justice require us to do.

I am therefore of opinion that we may give relief here if there are grounds for doing so, but I think that there are no grounds here for it, and that the Act of Sederunt should be enforced except where there are strong grounds for not doing so.

It is a great indulgence to give a pursuer the right to come here for jury trial, to remove a case he has brought in the Sheriff Court, and therefore a limited time is set within which he must avail himself of the privilege or the case will go on in the Court of his own selection. Here the pursuer had an opportunity given to her of appealing for jury trial on the 8th February last, but she allowed the case to go on by her adversary's appeal to the Sheriff, and even when that was disposed of on the 5th April she did not think of removing the cause, but went to the Sheriff-Substitute to get a diet of proof fixed. There is no case here for departing from the rule laid down by the Act of Sederunt, for there are clearly no circumstances to demand or even to warrant it.

Lord Rutherfurd Clark—I think the appeal is incompetent under the Act of Sederunt, and that we are bound to follow the decisions referred to. Into the question whether we could give relief I do not wish to enter. I would only like to say I think it very doubtful if we could.

Lord Lee—I concur with Lord Rutherfurd Clark, and I would only like to add that the case of Boyd in which the dispensing power was sustained was different. This is a case of appealing. That was a case of lodging prints.