Scottish Court of Session Decisions

Counsel for the respondent objected to the motion, and argued that it was incompetent for the Court to entertain the reclaiming note, in respect that the reclaimer had failed to follow forth the procedure enacted by the Court of Session (No. 2) Act 1838 (1 and 2 Vict. cap. 118), sec. 4, and the Court of Session Act 1825 (Judicature Act) (6 Geo. IV, cap. 120), sec. 18. Cooper v. Baillie, (1878) 5 R. 414, 15 S.L.R. 312; Ledingham v. Elphinstone, (1859) 21 D. 844; and Boag v. Fisher, (1848) 11 D. 129, were referred to.

Lord Justice-Clerk—The facts in this case are as follows:—When the action was called before Lord Ashmore the partibus duly set forth the Division to which the cause belonged, viz.—the Second Division. The Lord Ordinary after argument dismissed the action, whereupon the pursuer, within the appropriate time, printed and boxed to the Inner House a reclaiming note setting forth the Lord Ordinary's interlocutor and praying the Court to alter it. The reclaiming note was presented to the First Division. This was a mistake on the part of the pursuer. The reclaiming note, as the partibus bore, should have been taken to the Second Division. The Clerk to the First Division, however, received the reclaiming note, and it duly appeared in the Single Bills of that Division on 16th May. The Division having, as I understand, their attention drawn to the partibus, refused to entertain the reclaiming note. On 17th May the case appeared in the Single Bills of the Second Division, when the reclaimer moved that it be sent to the roll. Counsel for the respondent, however, maintained that the reclaiming note was incompetent, on the ground that the reclaimer had in the first instance boxed to the wrong Division, and that it was now too late to remedy the mistake.

The objection is highly technical, and should not, in my opinion, be sustained unless we are constrained by statute or otherwise to do so. Whether we are or not depends in point of fact on the provisions of section 18 of the Court of Session Act 1825, and section 4 of the Court of Session Act 1838. The earlier section was enacted at a time when the Lords Ordinary belonged to one or other of the two Divisions of the Court, and it requires that a reclaiming note shall be put into the boxes of the Judges of the Division to which the Lord Ordinary belonged. That arrangement was, however, altered by section 4 of the Act of 1838. By that section it was provided that the Lords Ordinary shall be attached not to one Division but equally to both Divisions of the Court, and it proceeds—That “the partibus written upon summonses, letters, or notes of suspension, advocation, or other writ by which a cause shall be originated in the Outer House, shall set forth the particular Division of the Court to which the cause shall belong; and in the event of the cause being afterwards removed to the Inner House by reclaiming note, cases, or otherwise, it shall he carried to the particular Division so set forth.” This reclaiming note satisfies the requirement of the section regarding the partibus. I assume, moreover—in the absence of suggestion to the contrary—that in accordance with the unaltered provisions of section 18 of the Act of 1825, copies of the reclaiming note were boxed, and that six copies, with the appropriate intimation, were sent to the opposite party.

It is argued, however, that the requirement that the cause “shall be carried to the particular Division so set forth” has not been observed by the reclaimer, with consequences which are fatal to his right of appeal. Now, that requirement is not by the statute in terms laid upon the litigant, as is the requirement regarding boxing and sending copies of the reclaiming note to the other party. As I read the section, it contemplates an automatic delivery of the note to the appropriate Division. Here the machinery failed, partly owing to the conduct of the litigant, partly owing to the conduct of the clerk to the First Division. But inasmuch as the reclaiming note was timeously presented to the Inner House, and copies were duly sent to the other side, and inasmuch as the statute does not enjoin that the litigant shall see that the note is carried to the appropriate Division, I am not prepared to hold, in the special circumstances of this case, that the reclaimer has forfeited all right of appeal to either Division of the Court. That is the respondent's contention. I think it revolts both common sense and equity. The view which I take receives confirmation from the case of Ledingham v. Elphinstone ( 21 D. 844), to which we were referred in the course of the argument. I therefore suggest to your Lordships that the respondent's objection should be repelled, and that the case should be sent to the roll.

Lord Ormidale—There no doubt has been a blunder here. The cause is a Second Division cause. It was called as such, the summons being marked on the partibus as a Second Division cause. The reclaiming note whose competency is objected to was within the period prescribed by statute removed to the Inner House, but per incuriam it was presented to the Clerk of the First Division. It should have been refused by him, but in error it was received by him, and the error was apparently only discovered when the case appeared in the Single Bills of the First Division on Saturday last, when the First Division refused to entertain the reclaiming note. It has now been presented to the Second Division, and the respondent objects that it is not competent for us to entertain it, on the ground that the reclaimer has failed to follow forth the procedure enacted by the Judicature Act of 1825, section 18, and by the Court of Session Act of 1838, section 4.

Now, taking section 18, the Lords Ordinary are no longer attached to a particular Division of the Inner House, and the initial provision of the section does not in terms apply, but the reclaiming note has within the prescribed period been presented to the Inner House. The other conditions as to boxing prints and delivering copies to the

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