Scottish Court of Session Decisions

This was an appeal from a judgment of the Sheriff-Substitute of the Lothians (Hamilton), pronounced after a proof, dismissing an action of accounting and payment brought by Harold Fraser Bell against John Munro Bell.

The appeal was lodged with the Sheriff-Clerk on 22nd March 1897, and the process was transmitted to and received by the Clerk of Court on 24th March.

The appellant duly printed the appeal, record, and interlocutors, but did not print the proof.

In the Single Bills the respondent objected to the competency of the appeal, on the ground that the appellant, having failed to comply with the provisions of the A.S. 10th March 1870, sec. 3, must be held to have abandoned it.

The appellant explained at the bar that an action had been raised in the Court of Session covering the whole subject-matter of which the Sheriff Court action touched a part. He had accordingly intended when the appeal came up to move the Court to remit it ob contingentiam to the Lord Ordinary before whom the Court of Session action depended. He had therefore not printed the proof, but he had since been advised that such a motion would be incompetent, and he now proposed to proceed with the appeal m ordinary course.

The A.S. 10th March 1870, sec. 3, alters the course of proceeding prescribed by sec. 71 of the Court of Session Act 1868 to the following extent and effect:—“(2) 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, within eight days after the process has been received by the clerk, he shall have obtained from the Lord Ordinary officiating on the bills an interlocutor dispensing

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with printing in whole or in part, 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.”

Argued for the respondent—The appellant had urged no good reason for dispensing with the regulation of the Act of Sederunt. On the contrary, his explanation plainly showed that his failure to print the proof was deliberate and not due to inadvertence. That was sufficient to distinguish the case from Boyd, Gilmour, & Company v. Glasgow and South-Western Railway Company, November 16, 1888, 16 R. 104, where the decision proceeded on the ground that the omission was unintentional, and where Lord Rutherfurd Clark and Lord Lee both dissented from the principles laid down by Lord Young, upon which the appellant relied.

Argued for the appellant— Boyd, Gilmour, & Company, ut sup., showed that the Court had an absolute discretion in the matter, and Lord Young's opinion was all in favour of a liberal construction of Acts of Sederunt. The objection taken to the appeal was purely technical, and no one would be prejudiced if the appeal were proceeded with. The provision of the Act of Sederunt was ex facie an alteration of a statutory provision (authorised by section 106 of the Court of Session Act), and should not be interpreted as strictly as if it were a section of the statute itself. It was to be observed that section 71 prescribed totally different rules as to printing from the Act of Sederunt.