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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v. Glasgow and South-Western Railway Co. (ante, p. 68.) [1865] ScotLR 1_80_1 (15 December 1865) URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0080_1.html Cite as: [1865] SLR 1_80_1, [1865] ScotLR 1_80_1 |
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Page: 80↓
(ante, p. 68.)
Is section 12 of the Act of Sederunt of 12th July 1865 inconsistent with section 4 of the Court of Session Act of 1850?
In this case Lord Kinloch on 29th November last ordered issues to be lodged in six days. On 4th December, before the expiry of the six days, the defenders gave a written consent to the time fixed being prorogated. On 5th December (being the sixth day) the pursuers enrolled the case, and moved the Lord Ordinary to prorogate the time, or otherwise then to allow issues to be received. Lord Kinloch refused the motion in respect of section 12 of the Act of Sederunt of 12th July 1865, which enacts—“All appointments for the lodging or adjusting of issues shall be held to be peremptory, and if the issue or issues be not lodged within the time appointed, it shall be competent to the opposite party to enrol the cause and to take decree by default, which decree by default shall not be opened up by consent of parties, but only on a reclaiming-note” The pursuers reclaimed.
The Solicitor-General, for them, maintained that the Lord Ordinary ought to have received the issues, because section 4 of the Court of Session Act, which could not be repealed by an Act of Sederunt, enacts—“That the periods appointed for lodging any paper may always be prorogated by written consent of parties; and the periods appointed for lodging any paper may always be once prorogated by the Lord Ordinary without such consent on special cause shown.” Here there was a written consent; but the Lord Ordinary held that an issue was not a paper in the sense of this section. An issue, however, was a paper, and was always treated as such.
The Lord President suggested that before disposing of the reclaiming-note they should consult the other judges. A most important matter of practice, he said, was involved. The greatest abuse in the Outer House is the system of granting prorogations. Parties need not consent to prorogate unless they please, but without a strict rule such as was intended to be laid down in the Act of Sederunt, agents cannot resist the solicitations of other agents to give their consent. The thing in fact has become a matter of courtesy through which litigants suffer, and so does the credit of the Court. The case was continued till Tuesday.
Counsel for Pursuers—The Solicitor-General and Mr Anderson. Agents— Messrs Marshall & Stewart, S.S.C.
Counsel for Defenders— Mr D. Mackenzie. Agents— Messrs Gibson-Craig, Dalziel, & Brodies, W.S.