Scottish Court of Session Decisions

The Court of Session (Scotland) Act 1868 (31 and 32 Vict. cap. 100) enacts—Section 28—“Any interlocutor pronounced by the Lord Ordinary as provided for in the preceding section … shall be final unless within six days from its date the parties or either of them shall present a reclaiming note against it to one of the Divisions of the Court. …”

Section 27 (the preceding section) was altered, and the provisions of C.A.S., C, ii, 4, were substituted therefor.

C.A.S., C, ii, 5 enacts—“The provisions of the 28th section of the Court of Session Act 1868 shall apply to all the interlocutors of the Lord Ordinary referred to in the foregoing section, so far as these import an appointment of proof.…”

C.A.S., D, i, 4 enacts—“In all cases where the days allowed for presenting a reclaiming note against an interlocutor pronounced by a Lord Ordinary in the Outer House expire during any vacation, recess, or adjournment of the Court, such reclaiming note may be presented on the first box day occurring in said vacation, recess, or adjournment after the reclaiming days have expired. …”

Joseph Ross, pursuer, brought an action against John James Herdman, W.S., sole executor of James Scott Ross and others, defenders, concluding for decree of reduction of a settlement alleged to have been granted by James Scott Ross, dated 15th June 1916.

The pursuer averred—“(Cond. 7) The said James Scott Ross was, from mental decay, incapax at the date of the execution of the said settlement. He was not of a sound disposing mind, and the said settlement is not the deed of the said James Scott Ross. At and for a considerable time prior to the date of its execution, the deceased was unable to give instructions for the preparation of a will, or to execute a will, or to dispose of his estate. He left no other operative writings of a testamentary nature disposing of his estate, which is believed to amount to about £2600.”

The pursuer pleaded—“2. The said James Scott Ross being of unsound mind at the

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date of the execution of said pretended settlement, decree of reduction should be granted as craved.”

On 20th March 1918 the Lord Ordinary ( Ormidale.) allowed a proof.

Thereafter on the first box-day in vacation the pursuer boxed copies of a reclaiming note; two days thereafter the reclaiming note was lodged. Counsel for the defenders objected to the competency of the reclaiming note.

Argued for the defenders—The interlocutor of the Lord Ordinary imported an allowance of proof and fell under the provisions of the C.A.S., C, ii, 4, which was substituted for section 27 of the Court of Session (Scotland) Act 1868 (31 and 32 Vict. cap. 100), and section 28 of the Act of 1868 applied—C. A. S., C, ii, 5. Consequently a reclaiming note would have been incompetent if the reclaiming days had expired in session unless it had been presented within six days, but the reclaiming days expired in vacation and the reclaiming note had to be presented on the first box-day—C.A.S., D, i, 4. In the present case the reclaiming note had not been presented in time; presenting meant lodging the principal signed note with the clerk of court— Craig v. Jex Blake, 1871, 9 Macph. 715, 8 S.L.R. 428; Bain v. Allan, 1884, 11 R. 650, 21 S.L.R. 389. Further, as the reclaiming note had not been presented, the copies tendered for boxing were copies of a document not before the Court, so that there had been no boxing. The statutory enactments as regards procedure were peremptory and excluded any possibility of indulgence— Watt's Trustees v. More, 1890, 17 R. 318, 27 S.L.R. 259; Burns v. Waddell & Son, 1897, 24 R. 325, 34 S.L.R. 264. Harris v. Haywood Gas Coal Company, 1877, 4 R. 714, was not an authority, for the report did not show the nature of the interlocutor reclaimed against. In any event the pursuer had been indulged by the provision allowing him to present his reclaiming note on the first box-day instead of within six days of the interlocutor reclaimed against, and he should not be given any further indulgence.

Argued for the pursuer—The practice was to receive boxing copies of reclaiming notes although the principal note had not been lodged, so that “boxing” appeared to be independent of “lodging.” When the reclaiming days expired in session the matter had always been regulated by statute—Judicature Act 1825 (6 Geo. IV, c. 120), section 18; Court of Session (Scotland) Act 1850 (13 and 14 Vict. c. 36), section 11; Court of Session (Scotland) Act 1868 ( cit.), sections 28 and 54, altered by A. S. 10th March 1870, sections 1 and 2, which were re-enacted by C.A.S., C, ii, 4, 5. But when the reclaiming days expired in vacation the matter was regulated by Act of Sederunt—A.S., 11th July 1828, section 79; A.S., 20th July 1853; A.S., 14th March 1894, now replaced by C.A.S., D, i, 4—and the Court had power to relax the provisions of an Act of Sederunt. Here, in any event, the provisions of the C.A.S., D, i, 4, which applied to the present case, should be relaxed, as the lodging of the reclaiming note had been delayed by the difficulty of getting counsel to sign it. But it was sufficient if the reclaiming note was boxed timeously. Harris's case ( cit.), where the want of objection could not have cured the defect if the reclaiming note had been incompetent, was an authority. Bain v. Allan ( cit.) merely decided that a reclaiming note duly lodged but not time-ously boxed, was competent. The dicta in Jex Blake's case ( cit.) were obiter. Further, C.A.S., D, i, 4, applied to all interlocutors where the reclaiming days expired in vacation and made no distinction between them. Yet in the case of interlocutors where the reclaiming days were twenty one, if the prints were duly boxed, the fact that the reclaiming note was lodged late was notfatal— M'Lachlan v. Nelson & Company, Limited, 1904, 6 F. 338, 41 S.L.R. 213; Davidson v. Scott, 1915 S.C. 838. The same rule should apply to other interlocutors falling under C.A.S., D, i, 4.