Scottish Court of Session Decisions

It is provided by the Judicature Act 1825, section 18, that a party reclaiming against an interlocutor “shall along with his note put into the boxes printed copies of the record authenticated” by the Lord Ordinary.

The Act of Sederunt of 11th July 1828 provides that reclaiming-notes “shall not be received unless there be appended thereto … copies of the summons with amendments, if any, and defences.”

In the present case certain amendments were made upon the summons under the interlocutor above mentioned, by which the pursuer's claim, which was originally both in his own right and as executor of his mother, was restricted to his claim as an individual, and the sum claimed was reduced from £1200 to £600, there being also added in manuscript, by way of amendment, on the margin of the summons “in respect of his own interest as an individual as one of the two heirs in mobilibus of the said Sarah Douglas or Adam,” and the restricted claim was in manuscript on the margin of the summons, described as “sum due by the defender to the pursuer in respect of his said interest as an individual and as one of said heirs.” The amendments thus made are not printed but were written upon the summons appended to the reclaiming-note, and the defenders maintain that the reclaiming-note is incompetent because it does not comply with the requirements of the Act of Parliament and Act of Sederunt already referred to.

It was decided in the case of Carter v. Johnston, February 6, 1847, 9 D. 598, that where a record was closed on the summons and defences with pleas-in-law for the pursuer, and these pleas-in-law were not appended to the reclaiming-note, it could not be received because it was incompetent under the 77th section of the Act of Sederunt above referred to. The pleas-in-law which were omitted were undoubtedly very vital and indeed essential parts of the record.

In the case of Muir v. Muir, 2 R. 26, a defender had been allowed to make extensive additions to the closed record, which introduced an entirely new defence and formed the main subject of debate in the Outer House, and the defender having reclaimed to the Inner House appended to the reclaiming-note a print of the original record with the amendments in manuscript. It was held that “considering the extent of the additions” this was not sufficient compliance with the terms of the Judicature Act and Act of Sederunt of 11th July 1828, section 77, and the reclaiming-note was refused as incompetent. It is important to observe that in this case the question was treated as one of degree, and it appears that the alterations and additions there were materially greater than those in the present case.

In the case of Williamson v. Howard, 1 F. 864, a summons contained conclusions (1) for specific implement of a contract by which the pursuer alleged that he had sold a heritable subject to the defender, and (2) for damages. In the Outer House the first conclusion was amended, and thereafter the Lord Ordinary assoilzied the defender from both conclusions. The pursuer reclaimed, but having sold the subject to another purchaser he insisted only in the second conclusion. The defender objected to the competency of the reclaiming-note on the ground that the copy of the summons appended to it did not contain the amendments on the first conclusion, and the reclaiming-note was held incompetent, diss. Lord Young. Here again the amendments appear to have been of a more extensive character than those in the present case.

In the case of Gibson v. M'Kean, 2 F. 1079, a reclaiming-note was refused as incompetent where an essential part of an interlocutor reclaimed against was omitted in the print appended to the reclaiming-note. Here also the omission seems to have been of a much more important character than in this case.

In view of these decisions I have felt considerable difficulty as to whether the plea of incompetency should be sustained in the present case, but upon the whole I am of opinion that it should not, seeing that although there was no print of the amendments, they were (as I understand) placed in manuscript upon the print of the summons appended to the reclaiming-note when the latter was boxed. Under these circumstances I think it would be too stringent an application of the Act of 1825 and the relative Act of Sederunt to refuse the reclaiming-note as incompetent, and I therefore think that the plea directed against its competency should be repelled.

Lord Adam—This reclaiming-note is objected to as being incompetent because the record has not been printed and appended to the reclaiming-note and boxed to the Court as required by the 18th section of the Judicature Act (6 Geo. IV. c. 120), and relative Act of Sederunt. The reason why it is said that the record in this case has not been printed is that during the course of the case it was found necessary to make amendments on the record as originally printed, and the amendment was put on the record in manuscript. Now it is not disputed that the whole record has been appended to the reclaiming-note and boxed to the Court. The objection is that though appended to the reclaiming-note and submitted to the Court the amendment is in manuscript and not in print. In regard to the provisions of the Act of 1825 and relative Act of Sederunt, it appears to me that while some of them are of an imperative nature others are of a more directory character. For example, the provisions with regard to reclaiming days must be rigidly enforced. This may also be the case with regard to the provision that the whole record must be appended to the reclaiming-note, but the regulation that printed copies of the record must be lodged is directory only. We must keep in view the procedure and practice which used to prevail in 1825, when long cases for debate were

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