Scottish Court of Session Decisions

In this case a reclaiming-note was presented against an interlocutor pronounced by the Lord Ordinary (Kincairney), but no prints of the record were boxed. When the case was called the Judges intimated that no copies of the record had been boxed to them. Counsel for the respondent stated that he did not desire to object to the

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competency of the reclaiming-note, but the Court continued the case for argument upon the question whether a reclaiming-note boxed without prints of the record could be received even of consent.

Argued for the respondent—The reclaiming-note was incompetent. It was settled by a train of decisions that where no prints of the record were boxed, a reclaiming-note must be dismissed as incompetent—Court of Session Act 1825(6 Geo. IV. c. 120), sec. 18; Act of Sederunt, 11th July 1828, sec. 77; M'Evoy v. Braes' Trustees, January 16, 1891, 18 R. 417; Watt's Trustees v. More, January 16, 1890, 17 R. 318; Miller v. Simpson, December 9, 1863, 2 Macph. 225. The consent of parties was not sufficient, for an incompetent reclaiming-note cannot be received of consent— Hopkirk v. Shotts Iron Company, December 8, 1830, 9 S. 152; Burns v. Waddell & Son, January 14, 1897, 24 R. 325.

Argued for the reclaimer—In M'Evoy, cit., the record had never been printed at all. The Court of Session Act 1825, sec. 18, was directory and not imperative— Allan's Trustees v. Allan & Sons, October 23, 1891, 19 R. 15; Harris v. Haywood Gas Coal Company, May 12, 1877, 4 R. 714. It was within the power of the Court to receive this reclaiming-note.