Scottish Court of Session Decisions

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Cite as: [1900] ScotLR 37_815, [1900] SLR 37_815

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SCOTTISH_SLR_Court_of_Session

Page: 815↓

Court of Session Inner House Second Division.

Thursday, June 21. 1900.

[ Lord Kincairney, Ordinary.

37 SLR 815

Gibson

v.

M'Kean.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Material Error in Print of Interlocutor Prefixed to Reclaiming-Note
Subject_4Competency — Court of Session Act 1825 (6 Geo. IV. c. 120) (Judicature Act), sec. 18.
Facts:

In an action brought against two defenders the Lord Ordinary pronounced an interlocutor in these terms, “Sustains the first plea-in-law for the defender W, and the second plea-in-law for the defender M,” and dismissed the action. In a reclaiming-note presented by the pursuers the interlocutor prefixed thereto was printed thus—“Sustains the second plea-in-law for the defender W.”

The Court refused leave to correct the error, and dismissed the reclaiming-note as incompetent.

Headnote:

The Court of Session Act 1825 (6 Geo. IV. c. 120) (Judicature Act), sec. 18, provides—“That when any interlocutor shall have been pronounced by the Lord Ordinary, either of the parties dissatisfied therewith shall be entitled to apply for a review of it to the Inner House,… provided that such party shall … print and put into the boxes appointed for receiving the papers to be perused by the judges a note-reciting the Lord Ordinary's interlocutor.”

In an action at the instance of Mrs Jane Helen Gibson, with consent of her husband Robert James Gibson, S.S.C., against James Calder M'Kean and John Robert Weddell, defences were lodged for both defenders. The defender M'Kean pleaded (2) that the action was irrelevant. The defender Weddell pleaded—“(1) The action is irrelevant.”

The Lord Ordinary ( Kincairney) on 22nd February 1900 pronounced the following interlocutor;—“The Lord Ordinary having heard counsel for the parties in the procedure roll, Sustains the first plea-inlaw for the defender Weddell, and the second plea-in-law for the defender M'Kean: Dismisses the action, and decerns: Finds the defenders entitled to expenses,” &c.

The pursuers reclaimed.

In the interlocutor prefixed to the reclaiming-note, in place of the words printed in italics as above, were printed the words—“Sustains the second plea-in-law for the defender Weddell.”

The respondents objected to the competency of the reclaiming-note, and argued—Section 18 of the Judicature Act provided that the reclaimer must lodge a note reciting the interlocutor reclaimed against. What was printed was not the interlocutor pronounced by the Lord Ordinary. It omitted all reference to one of the defenders, and in the case of the other it sustained the wrong plea. The Act was
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peremptory— Don v. Richardson, March 16, 1859, 21 D. 751.

The reclaimers moved to be allowed to amend by substituting the correct words of the interlocutor, and cited Milne's Trustee, November 12, 1842, 5 D. 68.

Judgment:

Lord Justice-Clerk—I do not see how it is possible to sustain this reclaiming-note. A fundamental part of the interlocutor pronounced by the Lord Ordinary has been left out in the print of the interlocutor prefixed to the reclaiming-note. It is not a case of printing the initials of one of the parties incorrectly or anything of that kind. The mistake is a mistake in regard to what is of the essence of the interlocutor. Nothing at all is said about one of the defenders, while as regards the other defender the plea-in-law which is mentioned is not the plea that the Lord Ordinary sustained. Regularity of procedure must be attended to. In the words of the Lord Justice-Clerk in the case of Don v. Richardson, 21 D. 751, to which we were referred, “The omitted passage constitutes the whole sting of the judgment. If the omission arose through a clerical error, it deserves to be visited by the severest penalty.” Here not having the correct interlocutor before us we can do nothing but refuse the reclaiming-note.

Lord Trayner—I agree. The interlocutor prefixed to the reclaiming-note must be the interlocutor pronounced by the Lord Ordinary. I regard the provision of the Act of Parliament as peremptory.

Lord Moncreiff—I think that we have no alternative but to sustain this objection. Even if the respondents had not taken it, I think that we should have been bound to take it ourselves.

Lord Young was absent.

The Court refused the reclaimers' motion, and dismissed the reclaiming-note as incompetent.

Counsel:

Counsel for the Pursuers— A. M. Anderson. Agents— Ritchie Rodger & Wallace, S.S.C.

Counsel for the Defender M'Kean— Kennedy. Agents— Gordon, Falconer, & Fairweather, W.S.

Counsel for the Defender Weddell— Gunn. Agents— Mackay & Young, W.S.
1900