Fisken v Fisken
| Jurisdiction | Scotland |
| Judgment Date | 20 October 1900 |
| Date | 20 October 1900 |
| Docket Number | No. 3. |
| Court | Court of Session |
Ld. Kyllachy, Lord Trayner, Lord Moncreiff, Lord Justice-Clerk, Lord young.
ProcessReclaiming NoteCompetencyAuthentication of RecordFailure to print Interlocutor cloning RecordJudicature Act, 1825 (6 Geo. IV. c. 120), secs. 10 and 18A. S., 11th July 1828, sec. 77Court of Session Act, 1850 (13 and 14 Vict. c. 36), sec. 5.
Held that a reclaiming note was not rendered incompetent by the omission to print the interlocutor of the Lord Ordinary closing the record.
In this action, at the instance of William Fisken, Glasgow, against his wife, the Lord Ordinary (Kyllachy) pronounced an interlocutor closing the record, and sending the case to the Procedure-roll on 20th June 1900.
Thereafter, by interlocutor, dated 4th July 1900, the Lord Ordinary allowed the record to be opened up, certain amendments to be made, and of new closed the record, and sent the case to proof.
After proof the Lord Ordinary assoilzied the defender on 28th August 1900.
The pursuer reclaimed, and boxed along with his reclaiming note a copy of the record as finally amended, and closed on 4th July, having printed thereon all the interlocutors in the case, with the exception of that of July 4th. On the reclaiming note appearing in the Single Bills counsel for the defender objected to it as incompetent, on account of this omission.*
Argued for the defender;The provisions of the Act of Parliament and of the Act of Sederunt were imperative. The proper authentication of a record, according to modern practice, was the interlocutor closing it. Such interlocutor was invariably in practice printed and boxed with the reclaiming note. Here the first interlocutor closing the record was printed, but the record had been thereafter opened up and amendments put on, and the interlocutor finally closing the record was not printed, and accordingly there were before the Court amendments which, so far as the prints shewed, were un-authenticated. The reclaiming note accordingly fell to be refused as incompetent.1
Argued for the pursuer;The reclaiming note was competent. The provisions of the statutes were merely directory. In any case, there was no direction that all the interlocutors should be printed, but only that the record, in the state in which it had been authenticated, should be printed, which had been done here. There was no case of a reclaiming note having been refused on account of the interlocutor closing the record not having been printed. In Willia...
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