Scottish Court of Session Decisions

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Cite as: [1908] ScotLR 783, [1908] SLR 783

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SCOTTISH_SLR_Court_of_Session

Page: 783↓

Court of Session Inner House First Division.

(Single Bills.)

Wednesday, June 17. 1908.

45 SLR 783

Hutchison

v.

Hutchison.

Subject_1Process
Subject_2Reclaiming Note
Subject_3Competency
Subject_4Boxing — Failure to Box Record — Court of Session (Judicature) Act 1825 (6 Geo. IV, cap. 120), sec. 18 — A.S., 11th July 1828, sec. 77 — Court of Session Act 1808 (48 Geo. III, cap. 151), sec. 16.
Facts:

The Court of Session Act 1808, section 16, provides that if the reclaiming days shall from mistake or inadvertency have expired, it shall be competent with leave of the Lord Ordinary to submit the interlocutor complained of by petition to the review of the Inner House.

The Court of Session Act 1825 (Judicature Act), section 18, provides that a party reclaiming shall within twenty-one days, along with the reclaiming note put into the boxes printed copies of the record.

The A.S., 11th July 1828, provides that reclaiming notes shall not be received unless there shall be appended thereto a copy of the record.

In an action of divorce for desertion the Lord Ordinary assoilzied the defender. During the currency of the reclaiming days a change of agency took place. The new agent made the mistake of assuming that the ordinary number of copies of the record had been printed. Only thirty copies had, however, been originally printed, and he was unable to procure sufficient copies to append to the reclaiming note for boxing, and, accordingly, only boxed the reclaiming note.

The Court, on the ground (1) that the mistake made was excusable, (2) that if the reclaimer were to go through the form of presenting a petition under the Court of Session Act 1808 the interlocutor could be submitted to review, and (3) that it was unnecessary to make him go through this form, repelled the respondent's objection to the competency of the reclaiming note, and sent the case to the roll.

M'Evoy v. Brae's Trustees, January 16, 1891, 18 R. 417, 28 S.L.R. 276; and Wallace v. Braid, February 16, 1899, 1 F. 575, 36 S.L.R. 419, distinguished.

Headnote:

The Court of Session Act 1808, section 16, enacts—“If the reclaiming or presenting days against an interlocutor of a Lord Ordinary shall, from mistake or inadvertency, have expired, it shall be competent, with the leave of the Lord Ordinary, to submit the said interlocutor by petition to the review of the Division to which the said Lord Ordinary belongs …”

The Court of Session Act 1825 (Judicature Act), section 18, enacts—“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, within twenty-one days from the date of the interlocutor, 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 … and 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 …”

The Act of Sederunt of 11th July 1828, section 77, enacts—“Reclaiming notes … shall at first be moved merely as single bills and immediately ordered to the roll, and shall then be put out in the short or summar roll as the case may be: Provided always that such notes, if reclaiming against
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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 …”

In an action at the instance of John Patterson Hutchison, Edinburgh, against Mrs Agnes Forrest Stevenson or Hutchison, his wife, in which the pursuer sought divorce on the ground of the defender's alleged desertion, the Lord Ordinary ( Guthrie) on 26th May 1908 pronounced an interlocutor assoilzieing the defender.

On the last of the reclaiming days the pursuer tendered to the boxing clerk a print of the reclaiming note with a print of the closed record appended to it, but the boxing clerk refused to certify the reclaiming note with record so appended as having been boxed, since the prints of the reclaiming note which had been put into the boxes did not have copies of the record attached to them. The reclaiming note and record were accordingly separated and separately lodged, only the former being marked as having been boxed.

The reclaimer in moving in the Single Bills that the reclaiming note be sent to the roll stated that he thought it his duty to point out to the Court that prints of the closed record had not been appended to the prints of the reclaiming note put in the boxes. He explained that the reason of this was that a change of agency had occurred during the currency of the reclaiming days, that the new agent had assumed that the ordinary number of copies of the record had been printed, but at the lodging of the reclaiming note discovered that there were not sufficient owing to the fact that originally only thirty copies had been printed. More could not be printed in time owing to the type having been taken down.

Argued for the reclaimer—In the peculiar circumstances the reclaiming note should be sent to the roll. Sufficient copies of the record for the Judges of the Division had been tendered to the boxing clerk, and that really met the requirements of the Judicature Act 1825— M'Lachlan v. Nelson & Company, Limited, January 12, 1904, 6 F. 338, 41 S.L.R. 213.

Argued for the respondent—The omission to box copies of the record was fatal to the competency of the reclaiming note—Judicature Act 1825, section 18; A.S., 11th July 1828, section 77; Wallace v. Braid, February 16, 1899, 1 F. 575, 36 S.L.R. 419; M'Evoy v. Brae's Trustees, January 16, 1891, 18 R. 417, 28 S.L.R. 276—even when the opposite party were willing to waive the objection to the competency— M'Evoy, cit. sup.; Burns v. Waddell & Son, January 15, 1897, 24 R. 325, 34 S.L.R. 264. [Lord M'Laren referred to section 18 of the Court of Session Act of 1808.]

Judgment:

Lord President—The point here raised is an unusual one. This is an ordinary twenty-one days interlocutor reclaiming note, and it appears that although the reclaiming note was tendered on the last of the reclaiming days with a copy of the closed record attached to it, the boxing clerk quite properly refused to certify it as having been boxed, since the reclaiming notes which had been put into the boxes did not have copies of the record attached to them. There is no question that ordinarily this would be fatal, but here the circumstances are peculiar. A change of agency took, place during the currency of the reclaiming days. The second agent quite naturally assumed that the printing of the record had been carried out in the usual way. At the lodging of the reclaiming note he sent for extra copies but discovered that the first agent had not a sufficient number, that the printer had none, and that the original number printed had been only thirty instead of sixty, with the result that there was a shortage for boxing to the Inner House, and the type had been taken down. We were referred to the cases of M'Evoy v. Brae's Trustees, 18 R. 417, and Wallace v. Braid, 1 F. 575, which embrace both Divisions of the Inner House. There is no doubt that those cases are binding upon us, but in neither of them was there any attempt to show that the mistakes which arose were really beyond the control of the agent. Lord M'Laren has pointed out that under section 16 of the Court of Session Act of 1808, if the reclaiming days have from mistake or inadvertency expired, it is competent to submit the interlocutor to review by petition, and it seems that this is a case where, if this form were gone through we could repone the reclaimer. That being so, we would not think nowadays of compelling a party to go through a mere form, so I propose that we should allow the reclaiming note to be received, the party undertaking to box the requisite prints in the usual way. But I wish to make it clear that this case is very special, and that I have no intention of going against the cases of M'Evoy and Wallace. If there had been no change in the agency here the case would have been an entirely different one and the result would probably have been otherwise. I put the case on this, that the second agent had the right to expect that the first agent had ordered the ordinary number of prints.

Lord M'Laren—I agree with your Lordship. I think we have to consider the question here as being under precisely the same conditions as if a petition had been presented under section 16 of the Court of Session Act of 1808, and that we should only give relief if an excusable mistake has been made. I think that the mistake was, in the peculiar circumstances, excusable, but this decision is no encouragement to neglect precise rules of procedure.

Lord Kinnear concurred.

Lord Pearson was absent.

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The Court pronounced this interlocutor—

“The Lords having heard counsel for the parties on the respondent's objection to the competency of the reclaiming note for the pursuer, repel the same and appoint the cause to be put to the roll.”

Counsel:

Counsel for the Pursuer (Reclaimer)— Mair. Agent— W. R. Mackersy, W.S.

Counsel for the Defender (Respondent)— Wark. Agents— J. & J. Galletly, S.S.C.
1908