Scottish Court of Session Decisions

Lord Barcaple reported a point which had arisen in this case for instructions from the Court. By the 12th section of the Act of Sederunt of 15th July 1865, it is provided that—“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.” In this case the pursuer had, by a miscalculation of the day upon which the period for lodging issues expired, failed to present them to the clerk to the process till the day following—when the clerk refused to receive them—but marked them as too late. The defender did not desire to take advantage of the mistake on the part of the pursuer's agent, and did not move for decree, but concurred with the pursuer in requesting the Lord Ordinary to report the matter to the Court for the purpose of obtaining leave to have the issues received.