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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Henderson v. D. & W. Henderson [1911] ScotLR 101 (23 November 1911) URL: https://www.bailii.org/scot/cases/ScotCS/1911/49SLR0101.html Cite as: [1911] ScotLR 101, [1911] SLR 101 |
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Page: 101↓
[
Cullen
et e
contra.
Court
of Session Act 1825 (Judicature Act) (6 Geo. IV,
cap.
120), sec. 18 — Act of Sederunt, 11th July 1828, sec. 77.
A raised an action against B &
C,
and B &
C
raised an action against A. The Lord Ordinary
conjoined
the actions, and thereafter pronounced an interlocutor
whereby
in the action at the instance of A he assoilzied B &
C,
and in the action at the instance of B &
C
granted
decree
against A. A reclaimed, but
when
boxing the reclaiming note
failed
to append
copies
of the record in the action against him, though he
did
append the record in the action at his instance.
The
Court
(after
consultation
![]()
with
the Second
Division)
repelled an objection to the
competency
of the reclaiming note, holding that it
was
![]()
within
their power to permit prints to be lodged if they thought, as they
did
here, that there
was
an excusable
cause
![]()
for
not lodging them at the proper time.
Authorities reconsidered.
The
Court
of Session Act (Judicature Act) 1825 (6 Geo. IV,
cap.
120), sec. 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 … 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 provides—section 77—“That reclaiming notes … shall at
first
be moved merely as Single Bills, and immediately ordered to the roll …: Provided always that such notes, if reclaiming against 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.
…”
Lawrence
David
Henderson raised an action against the then
dissolved
![]()
firm
of
D.
&
W.
Henderson, merchants and shipowners, Glasgow, and the individual partners of the
firm,
and
D.
&
W.
Henderson raised an action against Lawrence
David
Henderson.
Page: 102↓
On 21st
February
1911 the Lord Ordinary (
Cullen)
![]()
conjoined
the action at the instance of
D.
&
W.
Henderson
with
that at the instance of Lawrence
David
Henderson, and on 10th June 1911 pronounced this interlocutor—“In the action at the instance of the pursuer Lawrence
David
Henderson against the
defenders
![]()
D.
&
W.
Henderson and others, assoilzies the said
defenders
![]()
from
the
conclusions
of the action, and
decerns:
In the action at the instance of the pursuers
D.
&
W.
Henderson and others against the said
defender
Lawrence
David
Henderson,
decerns
against the said
defender
Lawrence
David
Henderson, in terms of the
conclusions
of the action at the instance of the said pursuers
D.
&
W.
Henderson and others.”
L.
D.
Henderson presented a reclaiming note against this interlocutor, but in boxing the reclaiming note he only appended prints of the
closed
record in the action at his instance, and
did
not append prints of the
closed
record in the action at the instance of
D.
&
W.
Henderson.
When
the
cause
appeared in Single Bills, on the motion of
counsel
![]()
for
L.
D.
Henderson, that it be sent to the roll,
counsel
![]()
for
![]()
D.
&
W.
Henderson objected to the
competency
of the reclaiming note.
Argued
for
the respondents—The reclaiming note
was
incompetent,
for
the provisions of the
Court
of Session Act 1825 (Judicature Act) (6 Geo. IV,
cap.
120), sec. 18, and of the Act of Sederunt of 11th July 1828, had not been
complied
![]()
with,
and these provisions, or at least those of the statute,
were
not
directory
but imperative— M'Evoy v. Braes' Trustees, January 16, 1891, 18 R. 417, 28 S.L.R. 276; Wallace v. Braid,
February
16, 1899, 1
F.
575, 36 S.L.R. 419; Blackwood v. Summers, Oxenford, &
Co.,
May 19, 1899, 1
F.
868, 36 S.L.R. 651; M'Lachlan v. Nelson &
Company,
Limited, January 12, 1904, 6
F.
338, 41 S.L.R. 213.
Argued
for
the reclaimer—Section 18 of the
Court
of Session Act 1825
was
merely
directory
and not imperative— Hutchison v. Hutchison, 1908 S.
C.
1001, 45 S.L.R 783; Burroughes &
Watts,
Limited v.
Watson,
1910 S.
C.
727, 47 S.L.R. 638. The mistake
was
excusable in the
circumstances.
Alternatively the reclaimer should be allowed to reclaim under the Administration of Justice and Appeals (Scotland) Act 1808 (48 Geo. III,
cap.
151), sec. 16— Tough v. Macdonald, November 24, 1904, 7
F.
324, 42 S.L.R. 180.
At advising—
case
the
decisions
quoted to us
were
indubitably
conflicting,
and accordingly
we
have reconsidered the
whole
matter along
with
the Second
Division.
The decision
of the
Court
is that it is
within
our power to permit prints to be lodged if in our view it
was
for
some excusable
cause
that they
were
not lodged at the proper time.
We
think that in this
case
there
was
an excusable
cause,
looking to the
confusion
between the two records brought about by the
conjoining
of the actions, and accordingly
we
shall send the note to the roll, but
we
wish
it to be
distinctly
understood that this
does
not mean that there is to be any relaxation of the rules as to printing and lodging and boxing and so on, and that persons must not think they
will
be allowed to get their
cases
to the roll unless there is really a very good
cause
shown.
concurred.
was
absent.
The Court
repelled the objection to the
competency
and appointed the
cause
to be put on the roll.
Counsel
for
the Reclaimer—
D.
P.
Fleming.
Agents—
Hume,
M'Gregor, &
Company,
S.S.
C.
Counsel
for
the Respondents—
C.
H. Brown. Agents—
Webster,
Will,
&
Company,
W.S.