Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1869/06SLR0243.html
Cite as: [1869] SLR 6_243, [1869] ScotLR 6_243

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SCOTTISH_SLR_Court_of_Session

Page: 243↓

Court of Session Inner House First Division.

1869.

Lord President

6 SLR 243

Monteith

v.

Wands.

Subject_1Appeal
Subject_4Court of Session Act 1868—Personal Intimation to Appellant.
Facts:

Under section 71 of the Court of Session Act 1868, when an appellant does not move in his appeal, and the other party, after intimation to the appellant's agent, moves that the appeal be dismissed, the Court will not in general grant the motion, except on certificate that a registered letter containing notice of the motion has been posted to the appellant, at his known residence.

Headnote:

This was an appeal from the Sheriff-court of Clackmannan. After the appeal was taken, the inferior court process was transmitted to the Court of Session and marked as received by the clerk. The appellant did not further move in the case. The appeal was then put to the roll by the respondent, who moved the Court, under the 71st section of the Court of Session Act 1868, to dismiss the appeal, with expenses. Due intimation had been made to the appellant's agent, and no appearance was made for the appellant.

Brown for respondent.

Judgment:

Lord President—It is desirable to have some general rule in such cases, which appear to be of not unfrequent occurrence. Dismissing an appeal when not insisted in would be an interlocutor of this Court which, if it were found out that the non-appearance of the appellant was founded on a mistake, could probably only be got the better of by an appeal to the House of Lords. That is undesirable. Perhaps the safest course is to require that in all such cases there shall be a registered post letter, containing intimation of the motion, addressed to the appellant himself at his known residence and, a certificate of that being lodged in process, the Court will then have safe grounds upon which to proceed.

Counsel:

Agent for Respondent— Alexander Morrison, S.S.C.
1869

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