Scottish Court of Session Decisions

This was an action for the aliment of an illegitimate child raised in the Sheriff Court of Aberdeen, Kincardine, and Banff, at Peterhead, at the instance of Amelia Ross, domestic-servant, Stuartfield, Old Deer, against Alexander Gray, farm-servant, Auchleuchries, Cruden, whom she alleged to be its father. The Sheriff-Substitute ( Dove Wilson) and the Sheriff ( Guthrie Smith) assoilzied the defender from the conclusions of the action. The pursuer appealed to the First Division of the Court of Session. The appeal was received by the clerk of Court on April 25th. On the 2d May the Lord Ordinary on the Bills ( Fraser) dispensed with printing in hoc statu. On the 17th May the First Division of the Court refused the appellant's motion to dispense with printing; and on the 31st May the print of the appeal was lodged.

Thereafter the defender and respondent moved the Court to dismiss the appeal on the ground that it must be held as abandoned, as the terms of the A.S., March 10th, 1870, sec. 3, sub-sec. 2, had not been complied with. It was contended that the fourteen days began to run from the 25th April, that they ran until the 2d May, that they recommenced to run on the 17th May, and that consequently lodging the print of appeal on the 31st May was too late.

The sub-section provides that “the appellant shall, during vacation, within fourteen days after the process has been received by the clerk of Court, deposit with the said clerk a print of the note of appeal, record, interlocutors, and proof, if any, unless, within eight days after the process has been received by the clerk, he shall have obtained from the Lord Ordinary officiating on the Bills an interlocutor dispensing with printing in whole or in part, for which purpose the assistant-clerk shall, if required, lay the process before the Lord Ordinary on the Bills; and in such case, the appellant shall deposit with the clerk, as aforesaid, a print of those papers, the printing whereof has not been dispensed with, and, if printing has been in whole dispensed with, shall lodge with the said clerk a manuscript copy of the note of appeal; and the appellant shall, upon the box-day or sederunt-day next following the deposit of such print with the clerk, box copies of the same to the Court; or, if printing has been in whole dispensed with, shall furnish to the clerk of the Lord President of the Division a manuscript copy of the note of appeal; and if the appellant shall fail, within the said period of fourteen days, to deposit with the clerk of Court, as aforesaid, a print of the papers required, or to lodge with him a manuscript copy of the note of appeal, as the case may be, or to box or furnish the same as aforesaid, on the box-day or sederunt-day next thereafter, he shall be held to have abandoned his appeal, and shall not be entitled to insist therein, except upon being reponed, as hereinafter provided.”

It was argued for the pursuer and appellant that the sub-section did not apply to the case where the dispensation with printing was in hoc statu, and that the fourteen days ran from the 17th of May, and that consequently the print of appeal was timeously lodged on the 31st of May.

At advising—