Scottish Court of Session Decisions

The Provost, Magistrates, and Council of Leith raised in the Bill Chamber a note of suspension and interdict against Mrs Lennon, residing in Leith. Their statement of facts set forth that the respondent had, in violation of the complainers' rights, interfered with the structure of, and begun operations of a prejudicial nature upon, a boundary wall between their respective properties, but built wholly upon that of the complainers. This wall formed the south-west boundary of a public park in North Leith.

The complainers accordingly craved their Lordships to “suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondent from using the wall forming the south-west boundary of the public park in North Leith in any way to the detriment thereof, and particularly from interfering with the present condition of the said wall, by lowering the same or adding to the height thereof, or from building or carrying on any building operation either on or against the said wall, or that may in any way affect the same; and to ordain the respondent to remove any stone, lime, or other building materials or erections she may have placed or caused to be placed on the said boundary wall, and to restore the same to the condition in which it was before

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the said operations were begun or executed; or to do further or otherwise in the premises as to your Lordships shall seem proper.—

After discussion the Lord Ordinary officiating on the Bills pronounced the following interlocutor:—

“ Edinburgh, 26 th October 1875.— . . In respect that the respondent states in the minute No. 10 of process that the operations sought to be interdicted were completed before the note was presented, and that she has no intention of interfering further with the wall in question, and now judicially undertakes in said minute that she will make no alteration on the said wall without judicial authority or the consent of the complainers—Refuses the note; finds the complainers liable in expenses; modifies the same to £8, 8s. sterling, for which, besides the dues of extract, decerns against the complainers.”

The complainers allowed the time for reclaiming to expire without lodging a reclaiming-note, but they afterwards applied to the Lord Ordinary for leave to submit the interlocutor to the review of the Inner House, under the 16th section of the Administration of Justice and Appeals Act, 1808 (48 Geo. III. c. 151). That section provides “that if the reclaiming or representing days against an interlocutor of a Lord Ordinary shall from mistake or inadvertency have expired, it shall be competent, with the leave of the Lord Ordinary, to submit the said interlocutor by petition to the review of the Division to which the said Lord Ordinary belongs.”

On 13th November the Lord Ordinary issued the following interlocutor:—“Having heard parties' procurators on the motion by the reclaimers for leave to reclaim against Lord Curriehill's interlocutor of 26th October 1875—Refuses the same; finds the complainers liable in expenses; modifies the same to £2, 2s. sterling, for which, besides the dues of extract, decerns against the complainers.”

The complainers now reclaimed against this interlocutor. The circumstances under which they had failed timeously to reclaim against the interlocutor of 26th October were stated in a minute lodged by them. It appeared from this minute that the resolution to reclaim against the interlocutor of 26th October had been come to by the Town Council upon their election at the beginning of November. The papers in the case had, on the 6th of that month, been put into the printer's hands, who had despatched proofs upon the 8th, but by mistake they were sent to the Police Office instead of the Town Clerk's office in Leith, and were not discovered until the afternoon of the 9th, the day upon which the time for reclaiming expired. It was further stated verbally at the bar that the reclaimer's agent had miscalculated the time allowed for reclaiming.

Argued for reclaimers—This reclaiming-note was competent as bringing an interlocutor which was final under review. Review was always competent unless expressly excluded by statute. The circumstances under which the failure to lodge the reclaiming-note arose were just those to which the 16th section of the Act applied. There was “mistake or inadvertency,” and the Lord Ordinary ought to have granted what was asked. This was not a case of crassa negligentia.

Argued for respondents—This reclaiming-note was incompetent by the statute requiring the leave of the Lord Ordinary, and the reclaimers were reclaiming without his leave. They had lost their right in consequence of their own negligence.

Authorities— Officers of State v. Alexander, June 29, 1864, 2 Macph. 1296; Forbes and Others v. Traill and Others, June 17, 1843, 5 D. 1212; Mills v. Hamilton, June 6, 1829, 7 Shaw 716; Williams v. Macnee, June 12, 1841, 3 D. 1014; Babington v. Newall and Others, Feb. 20, 1841, 2 D. 611; 48 Geo. III. 151, § 16; 6 Geo. IV. 120, § 18.

At advising—