Scottish Court of Session Decisions

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Cite as: [1904] SLR 41_281, [1904] ScotLR 41_281

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SCOTTISH_SLR_Court_of_Session

Page: 281↓

Court of Session Inner House Second Division.

[Sheriff of the Lothians and Peebles, at Edinburgh.

Tuesday, Februry 2. 1904.

41 SLR 281

Lee

v.

Maxton.

Subject_1Process
Subject_2Appeal
Subject_3Printing and Boxing Record
Subject_4Act of Sederunt, March 10, 1870, sec. 3, sub-sec. 1.
Facts:

In an appeal from the Sheriff Court the appellant printed and boxed the note of appeal without appending thereto a copy of the record; reference, however, was made to a print boxed in a former appeal in the same case to which was appended a copy of the record and of a minute setting forth certain amendments which the pursuer of the action had been allowed to make. There was no print of the defender's answers to the pursuer's amendments. Held that the appeal was incompetent in respect of the failure to observe the requirements of the Act of Sederunt of March 10, 1870, sec. 3, sub-sec. 1.

Headnote:

The Act of Sederunt of 10th March 1870 enacts (section 3 (1))—“The appellant shall … print and box the note of appeal, record, interlocutor, and proof, if any … and if the appellant shall fail … to print and box … the papers required as aforesaid, he shall be held to have abandoned his appeal, and shall not be entitled to insist therein except upon being reponed as hereinafter provided.”

This was an action in the Sheriff Court at Edinburgh at the instance of J. B. W. Lee, S.S.C., Edinburgh, against John Maxton, plumber, 79 High Street, Portobello.

After various procedure, in the course of which the pursuer was allowed to make certain important amendments on his record, the Sheriff-Substitute ( Henderson), on 7th September 1903, “having considered the closed record (as amended),” &c., assoilzied the defender and dismissed the action.

The pursuer appealed to the Sheriff ( Rutherfurd), who on 3rd December 1903 “having considered the amended record,” &c., dismissed the appeal.

The pursuer appealed to the Court of Session.

At the calling of the appeal in Single Bills, counsel were heard on a note presented
Page: 282↓
by the respondent craving the Court to dismiss the appeal in respect that the appellant had failed to print the record on which the judgment appealed against was pronounced.

An appeal had been taken by the pursuer at an earlier stage of the process, in which he printed and boxed the record as originally closed, and a minute containing the amendments which he had been allowed to make thereon. The defender's answers to the pursuer's amendments were not printed.

The print in the present appeal contained only the interlocutors from the date of the former appeal, the note of appeal, and proof which had been led. Reference was made to the print boxed in the former appeal.

Argued for the respondent—The record appended to the print in the former appeal was no longer the record in the case. The record upon which the judgment appealed from was pronounced not having been printed, the appeal should be dismissed—Act of Sederunt, March 10, 1870, sec. 3 (1).

Argued for the appellant—The print boxed in the former appeal containing the record and the pursuer's amendments satisfied the requirements of the Act of Sederunt, which should not be read strictly according to the letter— Young v. Brown, February 19, 1875, 2 R. 456, 12 S.L.R. 318: Lattimer v. Anderson, December 20, 1881, 9 R. 370, 19 S.L.R. 322; Boyd, Gilmour, & Company v. Glasgow and South-Western Railway Company, November 16, 1888, 16 R. 104, 26 S.L.R. 84.

Judgment:

Lord Justice-Clerk—There appears to be no doubt that in the past considerable relaxations of the rule as to printing papers have been allowed to parties, and that the provisions of the Act of Sederunt have not always been literally enforced. But we do not require to consider the value as precedents of the cases which have been quoted to us, in all of which all the necessary materials for the decision of the case were before the Court when the competency of the appeal was discussed—for none of them touches the present case, in which at the present moment there is not before the Court the record on which the judgment was given which is submitted for review. That is so great an irregularity that it cannot be allowed to pass.

Lord Trayner—I am of the same opinion. I think the Act of Sederunt is imperative, and it has not been complied with. It is impossible for a Court of Appeal to deal with a judgment brought up on appeal unless they have before them the record on which the judgment appealed against was pronounced. That record is not before us here.

Lord Moncreiff—I am of the same opinion. In some of the cases quoted by Mr Chree the Court showed great indulgence towards irregularities in the matter of printing and lodging papers in terms of the Act of Sederunt. But I think no settled rule of practice was laid down, and that each case must be considered on its own merits. In the present case I have heard no reasonable excuse or explanation of the failure to print an essential portion of the case. We see from the minute that the amendments proposed by the pursuer were of a very extensive character, but we have no means of ascertaining from the prints which have been lodged what answers were made by the defender to these amendments.

Lord Young was absent.

The Court dismissed the appeal.

Counsel:

Counsel for the Pursuer and Appellant— Chree. Agent— Party.

Counsel for the Defender and Respondent— Mercer. Agent— John Baird, Solicitor.
1904