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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Weinschel v. Weinschel's Trustee and Another [1916] ScotLR 695 (19 July 1916) URL: http://www.bailii.org/scot/cases/ScotCS/1916/53SLR0695.html Cite as: [1916] SLR 695, [1916] ScotLR 695 |
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Page: 695↓
(Single Bills.)
[
In a petition for recall of sequestration, the Lord Ordinary having allowed a proof, the trustee in the sequestration reclaimed. The prints of the petition and answers were not appended to the reclaiming note, but were lodged and boxed separately and later. The respondent objected to the competency of the reclaiming note on the ground that in this respect it did not comply with the Judicature Act, 1825, sec. 18, and C. A.S., D, i, 2. In the special circumstances of the Case the Court repelled the objections to the competency, but observed that petitions and answers were in this matter exactly equivalent to a closed record, and must be appended to any reclaiming note and boxed therewith.
Page: 696↓
The Judicature Act 1825 (6 Geo. IV, cap. 120), 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 … 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 C.A.S., 1913, D, i, 2, enacts—[ After providing that reclaiming notes shall be at first moved in the Single Bills)—“Provided always that such notes, if reclaiming against an Outer House interlocutor, shall not be received unless there be appended thereto copies of the papers, authenticated as the record, in terms of the statute, if the record has been closed.”
The Bankruptcy (Scotland) Act 1913 (3 and 4 Geo V, cap. 20), enacts, section 167—“Where any judgment of the Lord Ordinary is to be brought under review of the Inner House, the same shall be done by a reclaiming note in common form. …”
Robert Greenwood Morton, C.A. (trustee on the sequestrated estates of David Weinschel) and another, reclaimers, brought a reclaiming note against an interlocutor allowing proof dated 29th June 1916, pronounced by the Lord Ordinary ( Anderson) in a petition at the instance of Mrs Rachael Weiner or Weinschel, wife of David Weinschel, respondent, for recall of the sequestration of the estates of her husband.
The respondent moved in the Single Bills that the reclaiming note should be dismissed in respect (1) that prints of the petition for recall and the answers thereto were not appended to the reclaiming note and were not boxed therewith, but were lodged and boxed separately from and later than the reclaiming note, and (2) that the reclaiming note was marked “Junior Lord Ordinary” instead of “Bill Chamber.”
Argued for the respondent—The reclaiming note should be dismissed as incompetent. The petition and answers must be appended thereto and be lodged and boxed there with—Bankruptcy (Scotland) Act 1913 (3 and 4 Geo. IV, cap. 20), sec. 167; C.A.S., 1913, D, i, 2; Judicature Act 1825 (6 Geo. IV, cap. 120), sec. 18; A.S., 11th July 1828, sec. 77; M'Evoy v. Braes' Trustees, 1891, 18 R. 417, 28 S.L.R. 276; Wallace v. Braid, 1899, 1 F. 575, 36 S.L.R. 419, where that objection was sustained though the respondent waived it. If the objection was sustained the reclaimers had a remedy by reponing note as provided by the Court of Session Act 1808 (48 Geo. III, cap. 151), sec. 16— Watt's Trustees v. More, 1890, 17 R. 318, 27 S.L.R. 259; M'Arthur v. Mackay 1914 S.C. 547, 51 S.L.R. 466. It made no difference that here there was a petition and answers and not a closed record. The petition and answers were equivalent to a closed record, and in sequestration proceedings the reclaiming note had to be in common form—Bankruptcy (Scotland) Act ( cit.) 1913, sec. 167. There might be a reclaiming note without the record being closed— Spence v. Spence, 1914 S.C. 887, 51 S.L.R. 766. The reclaiming note was wrongly marked, and was therefore incompetent— A v. B, 1859, 21 D. 203.
Argued for the reclaimers—The reclaiming note was competent. The statutes, Acts of Sederunt, and cases cited were not in point, for they applied only to reclaiming notes where there was a closed record, whereas the recal of a sequestration was to be obtained by petition—Bankruptcy (Scotland) Act 1913(cit.), sec. 30. In any event the A.S. 11th July 1828, sec. 77, and the C.A.S. 1913, D, i, 2, were directory and not imperative— M'Lachlan v. Nelson & Company, Limited, 1904, 6 F. 338, 41 S.L.R. 213. If so the Court should exercise its discretion and receive the prints, as the reason for separate lodging and boxing was the inability of the printers to do the work in time owing to shortage of hands.
At advising—
After consultation with the Judges of the other Division of the Court, we have come to the conclusion that the statute and the Act of Sederunt ought to have been complied with in this case, and that in all such cases a petition and answers must be treated as if they constituted a closed record within the meaning of the sections of the statute and the Act of Sederunt to which I have referred. We desire that it shall be clearly understood for the future that the Court will act on the assumption that the petition and answers in cases such as this are exactly equivalent to a closed record within the meaning of the statute and the Act of Sederunt. But inasmuch as this question has apparently arisen now for the first time, and some misunderstanding accordingly may have occurred, we are not prepared to visit the reclaimer with the extreme consequences of the omission and to throw out the reclaiming note as incompetent. The conclusion we have reached is that in the special circumstances of this case we may repel the objection to the competency and send the case to the Summar Roll, but in future petitions and
Page: 697↓
The Court repelled the objections to the competency and sent the case to the Summar Roll.
Counsel for the Reclaimers— Ingram. Agent— Isaac Furst, S.S.C.
Counsel for the Respondent— J. A. MacLaren. Agent— A. W. Gordon, Solicitor.
