Scottish Court of Session Decisions

The opinion of the Court ( Lord Kinnear, Lord Johnston, and Lord Mackenzie) was delivered by

Lord Kinnear—This is an application to dispense with the printing of a reclaiming note, and to allow the reclaiming note in manuscript to be received.

I think the application should be granted, for otherwise the reclaimer would be denied a hearing because of a non-compliance with regulations, for which he is in no way to blame.

There is no question that the condition on which, in general, a reclaimer can have his reclaiming note received at all is that he must print the reclaiming note, and must box it with a copy of the printed record attached thereto, according to the regulations of the statute. The present reclaimer has failed to do so, but he has given an explanation which I think is satisfactory. It appears that when the case was in the Outer House his opponent obtained from the Lord Ordinary a dispensation from the obligation to print the record, to which the reclaimer assented. The dispensation granted by the Lord Ordinary was in hoc statu, and only applied to the Outer House and not to this Court. The case proceeded in the Outer House on the manuscript record, and the Lord Ordinary pronounced an interlocutor on 28th March 1910 deciding against the defender. Now, according to the statute, the strict duty of the defender, if he wanted to reclaim, was to print the reclaiming note and to attach to it a copy of the printed record. But there was no printed record in existence at that time, and I apprehend that the reclaimer should not be barred by a failure to do what was not in his power to do. The assumption of the regulation is that the reclaimer finds a record already printed which he may attach to his reclaiming note. But there was no such record, because the Court had dispensed with printing; and although the reclaimer might no doubt have satisfied the regulation by printing at his own expense the whole record as well as the reclaiming note, I think that he was under no such absolute obligation to do so as to preclude his applying to the Court for a similar indulgence as that which had been accorded to his opponent in the Outer House.

The only question therefore is whether he is now too late to make this application to dispense with printing. I think it is obvious that he is not, for the interlocutor reclaimed against was only issued in vacation, and the reclaimer has brought this application before us on the second day of session. The respondents' objection was supported by a reference to the case of M'Evoy v. Brae's Trustees (16th January 1891, 18 R. 417), which is an important decision and is binding on us. But the circumstances there were quite different, for in that case the party reclaiming was the party who had got a dispensation from printing in the Outer House, and when he came to reclaim he simply assumed that the dispensation granted in the Outer House would apply in the Inner House as well. Of course he was wrong in that assumption, and there was no ground in that case, such as we have here, to entitle him to an indulgence. I think that the true ground for disposing of this case in the way I have suggested is that otherwise we should be requiring this reclaimer to do what it was not in his power to do.