Scottish Court of Session Decisions

Messrs Clark & Macdonald, S.S.C., Edin-durgh, presented this petition to the Court, in which they narrated the following facts:—On 20th July 1895 the First Division approved of the Auditor's report on the pursuer's account for expenses in an action for payment raised by Donald Mackenzie, London, against William Bain, accountant, Great King Street, Edinburgh, decerned against the defender for the taxed amount thereof, £41, 2s. 8d., and allowed the decree to go out and be extracted in name of the petitioners as agents-disbursers. By inadvertency, the Depute-Clerk of Court, who wrote out the interlocutor, instead of the true figures, £41, 2s. 8d., inserted the figures £14, 2s. 8d. in the interlocutor. The error was noticed by the defender shortly after the interlocutor was signed, but the petitioners were not aware of any error having been made, and subsequently ascertained that, before they saw the interlocutor, the Depute—Clerk of Court had corrected his mistake by changing £14 to £41, thus bringing the interlocutor into conformity with the judgment of the Court. This alteration was not pointed out to the petitioners, who ordered extract in usual course, under the belief that same was in order, which it ex facie appeared to be.

The petitioners, on obtaining their extract, charged the defender William Bain thereon to pay the sums therein mentioned. The charge expired without any intimation having been made by the defender to the petitioners of the alleged default in the interlocutor, but, on the petitioners instructing a poinding of the effects of the defender, he only then presented a note of suspension and interdict of the decree and whole proceedings following thereon, and Lord M'Laren, Lord Ordinary officiating on the Bills, on 9th October 1895, pronounced the following interlocutor in the note of suspension and interdict:—‘Edinburgh, 9th October 1895.—On caution to see and answer in eight days; meantime sists execution, and to be intimated.—John M'Laren.’

“The said defender William Bain has found caution, and is insisting in said note of suspension and interdict to the great hurt and prejudice of the petitioners, who are rightly and justly entitled to the said sum of £41, 2s. 8d., which was the taxed amount of expenses, and which was the sum the Court intended to grant decree for, and believed they were granting decree for.

In these circumstances the petitioners are under the necessity of applying to your Lordships to exercise your nobile officium, and to confirm and authenticate the amendment by the Clerk of Court in said interlocutor, as if the said amendment had been made and duly authenticated on 20th July 1895, being the date of the said interlocutor sought to be rectified, so that the proceedings which have followed thereon may be held to be regular and in conformity with law.”

The petitioners accordingly craved the Court to “confirm and authenticate the amendment by the Clerk of Court in the said interlocutor, as if the said amendment had been made and duly authenticated on said 20th July 1895, being the date of the said interlocutor sought to be rectified.”

Mr Bain lodged answers, in which he stated that on 6th August his agent's clerk made a copy of the interlocutor at the Register House, that on 7th August the respondent had himself done the same, and that on both these occasions the interlocutor bore to decern for the sum of £14, 2s. 8d. The respondent further stated that, considering his then indebtedness to be £14, 2s. 8d., he had gone to the country, and only returned two days before the expiry of the charge. He had then pointed out to the messenger-at-arms that the interlocutor was for £14 odds, not for £41 odds, but, notwithstanding, his goods were poinded on 2nd October. He was then compelled to take the proceedings in the Bill Chamber referred to by the petitioner. As these proceedings would come under notice of the Court in due course, he submitted that the petition was incompetent, or at all events premature.

The respondent accordingly asked the Court to refuse the petition.

At an early stage in the discussion the Junior Lord Ordinary (Low), at the suggestion of the Lord President, reported the action pending in the Bill Chamber to the Court.

Page: 87↓

Argued for the petitioners—This was admittedly a clerical error, which the Clerk was not only entitled but bound to correct when he discovered it. The answers were irrelevant, for it was not disputed that the extract was correct and in conformity with the judgment of the Court— Miller v. Lindsay, June 8, 1850, 12 D. 964; Allan v. Wormser Harris & Company, June 8, 1894, 21 R. 866, per Lord Rutherfurd Clark, 875; Mackay's Practice, p. 320.

Argued for the respondent—Granted that a clerical error may be corrected de recenti, and before extract, this error had not been corrected de recenti. The real question in the case was whether the diligence against the respondent was good. The petitioners, indeed, virtually admitted that it was bad by coming to the Court and asking to have the warrant for the extract and charge authenticated so as to set up all that followed thereon. The proper action for determining that question was the suspension in the Bill Chamber, and the present petition was unnecessary— Sykes v. Nicol, July 18, 1848, 10 D. 1499; Ritchie v. Ferguson. November 16, 1849, 12 D. 119.