Scottish Court of Session Decisions

This was an appeal against a Small-Debt Court decree of the Sheriff of Cupar, decerning against the appellant (an illegitimate son) for past aliment to his mother.

Young, for the respondent, objected—The appeal is incompetent, in respect that it was not lodged and served within ten daysof the decree appealed against. The Small-Debt Act, in terms of which the Act of Sederunt of 10th July 1839 was prepared, provides that appeal before the Circuit shall be brought under the rules contained in the Jurisdiction Act; and the appeal ought therefore to have been taken in open Court at the time judgment was pronounced, or within ten days thereafter, by both lodging the appeal in the clerk's hands, and serving the other party or his procurator with a copy. The decree in the cause was pronounced on 7th October 1869; the appeal was not taken in open Court, was not lodged until the 25th October, and was not served until the 27th; it was therefore incompetent; Henderson v. M'Aulay, 1849, J. Shaw 219.

Scott, for the appellant, replied—The appeal has been taken timeously, and according to the rules prescribed by Act of Parliament and Act of Sederunt, inasmuch as at the time judgment was given the appellant notified in open Court to the clerk and the respondent his intention to appeal.

It was replied to this, that such a fact did not appear from any entry in the Sheriff-court Book, and that the lodging of the appeal on the 25th of October did not consist with the statement that the rules of procedure had been previously complied with by notice in Court.