Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fisken v. Fisken [1900] ScotLR 38_4 (20 October 1900)
URL: http://www.bailii.org/scot/cases/ScotCS/1900/38SLR0004.html
Cite as: [1900] SLR 38_4, [1900] ScotLR 38_4

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 4↓

Court of Session Inner House Second Division.

Saturday, October 20. 1900.

[ Lord Kyllachy, Ordinary.

38 SLR 4

Fisken

v.

Fisken.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Competency
Subject_4Printing — Omission from Print Appended to Reclaiming — Note of Interlocutor Closing Record — Court of Session Act 1825 (6 Geo. IV. C. 120) (Judicature Act), sec. 18 — A. S. 11th July 1828, sec. 77 — Court of Session Act 1850 (13 and 14 Vict. c. 36), sec. 5.
Facts:

A reclaimer boxed along with and appended to his reclaiming-note prints containing the record as finally closed, and all the interlocutors pronounced in the cause, with the exception of the interlocutor pronounced by the Lord Ordinary closing the record.

Held that his omission to print this interlocutor did not render the reclaiming note incompetent, in respect that, although he was bound to print the record as authenticated, he was not bound to print the interlocutor which was the proof of such authentication.

Headnote:

Page: 5↓

The Court of Session Act 1825 (6 Geo. IV. c. 120) (Judicature Act), sec. 18, enacts as follows:—“Where 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.… Provided that … if the interlocutor has been pronounced without cases, the party so applying shall, along with his note as above directed, put into the boxes printed copies of the record authenticated as before” [ i.e., by the signature of the Lord Ordinary, sec. 10].

The Act of Sederunt, 11th July 1828, sec. 77, enacts that reclaiming-notes “if reclaiming against an Outer House interlocutor, shall not be received unless there be appended thereto copies of the mutual cases, if any, and of the papers authenticated as the record in terms of the statute, if the record has been closed; and also copies of the letters of suspension or advocation and of the summons with amendment, if any, and defences” …

Section 5 of the Court of Session Act 1850 (13 and 14 Vict. cap. 36) provides that the “record shall be closed by interlocutor of the Lord Ordinary before whom the process depends.”

On 28th March 1900 William Fisken raised an action of divorce for adultery against his wife Mrs Isabella Treasurer or Fisken.

By interlocutor dated 20th June the Lord Ordinary ( Kyllachy) closed the record on the summons and defences, and on the motion of the defender sent the case to the procedure roll.

By interlocutor dated 4th July the Lord Ordinary having heard counsel in the procedure roll opened up the record, allowed the pursuer to amend the same as proposed at the bar, and this being done of new closed the record, sustained the libel as amended as relevant and allowed parties a proof of their averments, and the pursuer a conjunct probation.

A proof was led, and by interlocutor dated 28th August the Lord Ordinary found that the pursuer had failed to prove the adultery libelled, and assoilzied the defender from the conclusions of the action.

Against this interlocutor the pursuer reclaimed. Along with and appended to his reclaiming-note the pursuer boxed prints containing the record as finally amended and closed on 4th July, and all the interlocutors except the interlocutor dated 4th July.

When the case was called in the Single Bills the defender and respondent objected that the reclaiming-note was incompetent, because the interlocutor of 4th July had been omitted from the print.

Argued for the defender and respondent—Section 18 of the Judicature Act 1825 required copies of the record authenticated by the Lord Ordinary to be boxed. A record was authenticated under the present practice not by the signature of the Lord Ordinary but by the interlocutor closing the record. Unless that interlocutor were printed, there could not properly be said to be boxed a record authenticated by the Lord Ordinary. The rules on this subject were very strictly applied— Williamson v. Howard, May 18, 1899, 1 F. 864.

Argued for the pursuer and reclaimer—The interlocutor of 4th July had by inadvertence been omitted to be printed, but that omission did not make the reclaiming-note incompetent. The record which had been boxed was the amended record authenticated by the Lord Ordinary. This was all that the Judicature Act required, it did not provide that evidence of such authentication should also be printed. In the case of Williamson v. Howard, supra, the record appended to the reclaiming-note did not contain some of the amendments allowed by the Lord Ordinary. The record appended to the reclaiming-note was thus not the authenticated record. Here the authenticated record had been printed, and that was all that the Act required, although it was customary and proper to print all the interlocutors pronounced by the Lord Ordinary.

At advising—

Judgment:

Lord Trayner—The competency of this reclaiming-note is objected to on the ground that it does not comply with the requirements of the Judicature Act. That statute (sec. 10) requires the record to be authenticated by the Lord Ordinary, and also (sec. 18) that the record, “authenticated as before,” shall be boxed to the Judges with any reclaiming-note. The record, according to modern practice, is authenticated by the interlocutor of the Lord Ordinary closing the record, and it is the record so closed (and authenticated) that must be boxed with the reclaiming-note. That record has been duly boxed in the present case. It is not suggested that the record boxed with the present reclaiming-note is not, or differs in any respect from, the record as closed (and authenticated) by the Lord Ordinary. But the interlocutor by the Lord Ordinary closing the record was not printed and boxed with the reclaiming-note, and it is said therefore that the record as placed before us is not authenticated. I think the objection is not a sound one. It fails to distinguish between the thing authenticated and proof of authentication. The record authenticated by the Lord Ordinary has, as I have said, been duly boxed, and there is no dispute about that. The proof of the authentication has not been printed and boxed, but we have it before us on the interlocutor sheet. The Judicature Act does not require the interlocutor to be printed. It is usually printed, and it is convenient that it should be, but it is not required by statute. The reclaiming-note before us appears to me to be in accordance with statutory requirements, and the objection to its competency should, I think, be repelled.

Lord Moncreiff—In this case the reclaimer has failed to print and box with his reclaiming-note the Lord Ordinary's interlocutor of 4th July 1900, by which he allowed the record to be opened up and amended, of new closed the record, and

Page: 6↓

allowed a proof. The question is, whether in respect of this omission we are bound to refuse to receive the reclaiming-note. This depends upon the provisions of the Judicature Act 1825, in particular sections 10 and 18, and the relative Act of Sederunt of 11th July 1828, section 77. Under the statute it is provided that the party reclaiming shall box printed “copies of the record authenticated as before”—that is, by the signature of the Lord Ordinary; and by the Act of Sederunt it is provided that reclaiming-notes shall not be received “unless there be appended thereto copies of the papers authenticated as the record in terms of the statute if the record has been closed.”

It is no longer the practice for the Lord Ordinary to authenticate the record by his signature on the paper. But under section 5 of 13 and 14 Vict. c. 36, the record is closed by interlocutor signed by the Lord Ordinary.

If a very strict view were taken of these enactments, I think that it might be contended with some force that even after the alteration in the form by which the closed record was authenticated, it was necessary that there should be boxed to the Court, not merely copies of the record, but also copies of the interlocutor by which it was authenticated, otherwise the papers lodged would not disclose, as had hitherto been done, that the record had been duly authenticated.

However, I am not disposed to press this view. It is not desirable to extend further than their terms absolutely compel us the scope of these old enactments, which, if violated carry with them such penal consequences to the party. They admit of the construction which your Lordships are prepared to put upon them. Therefore, while I think it is right and proper that with every reclaiming-note there should be lodged copies of the earlier interlocutors, and in particular of the important interlocutor closing the record and allowing a proof, I am not prepared to hold that the failure to lodge copies of such interlocutor involves the refusal of the reclaiming-note, whatever other penalty may be imposed upon the party.

The Lord Justice-Clerk concurred with Lord Trayner.

Lord Young was absent.

The Court sent the case to the roll.

Counsel:

Counsel for the Pursuer and Reclaimer— Salvesen, Q.C.—A. S. D. Thomson. Agent— John Veitch, Solicitor.

Counsel for the Defender and Respondent— Tait. Agent— Andrew H. Hood, S.S.C.
1900