Scottish Court of Session Decisions

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Cite as: [1888] SLR 26_11, [1888] ScotLR 26_11

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SCOTTISH_SLR_Court_of_Session

Page: 11↓

Court of Session Inner House First Division.

Wednesday, October 17. 1888.

[ Lord Lee, Ordinary.

26 SLR 11

Henderson

v.

Henderson.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Competency
Subject_4Boxing in Vacation after Expiry of Reclaiming Days — Personal Diligence (Scotland) Act 1838 (1 and 2 Vict. cap. 114), sec. 20.
Facts:

By the 20th section of the Personal Diligence (Scotland) Act ten days are allowed for reclaiming against interlocutors of a Lord Ordinary loosing arrestments. An interlocutor loosing arrestments was pronounced on the last Wednesday of the summer session. The reclaiming days consequently expired on a Saturday in vacation, on which day the office was closed. The reclaiming-note was lodged on the following Tuesday, the first day after expiry of the reclaiming days on which the office was open. Held that the reclaiming-note was lodged in time.

Headnote:

This was an action of count, reckoning, and payment brought by Andrew Henderson against Mrs Isabella Burd or Henderson. In virtue of a warrant of arrestment contained in the summons the pursuer arrested the funds of the defender in the hands of the Union Bank of Scotland (Limited). The defender presented a petition to the Lord Ordinary craving to have the arrestments loosed, and the Lord Ordinary ( Lee) on 18th July 1888 pronounced this interlocutor:—“The Lord Ordinary having heard counsel on the foregoing petition, on consignation of the sum of One hundred and twenty pounds in the National Bank of Scotland (Limited), Recals the arrestments above referred to, and decerns.”

The Personal Diligence (Scotland) Act 1838 (1 and 2 Vict. cap. 114), sec. 20, provides that such judgment shall be subject to the review of the Inner House by a reclaiming-note duly lodged within ten days from the date thereof.

The pursuer reclaimed, but the reclaiming-note, which in terms of the statute was due on Saturday 28th July, was not lodged till Tuesday 31st July. It appeared that in vacation the office was only open on Tuesdays, Wednesdays, and Thursdays.

The respondent objected to the competency of the reclaiming-note, and argued that it could not be received, not having been duly lodged within the time allowed by the Personal Diligence Act. Though the office was shut there was no difficulty in lodging the note at the Clerk's house, or posting it to him at the Register House— Lockhart v. Gumming, May 27, 1851, 13 D. 996; Ross v. Herde, March 9, 1882, 9 R. 710.

The reclaimer argued—(1) The reclaiming days falling in vacation the note was in time if lodged before the first box-day—Bankruptcy Act 1856 (19 and 20 Vict. cap. 79), sec. 171; Joel v. Gill, January 11, 1860, 22 D. 357; Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 94 and 107. (2) The office not being open in vacation except on Tuesdays, Wednesdays, and Thursdays, the reclaiming-note was in time as lodged on the first possible day after the expiry of the ten days. There was no obligation to lodge at the Clerk's house, or necessity that the Clerk's house should be open, or even should be in Edinburgh— Craig v. Jex Blake, March 16, 1871, 9 Macph. 715; Russell v. Russell, November 12, 1874, 2 R. 82; Bain v. Adam, February 7, 1884, 21 S.L.R. 389. The defender had suffered no prejudice by the delay.

At advising—

Judgment:

Lord President—In this case the Lord Ordinary pronounced an interlocutor on 18th July last, and according to the Personal Diligence Act the reclaiming-note had to be lodged within ten days, namely, on or before 28th July, which was a Saturday. Now, the obligation that the reclaiming-note should be lodged on that day was one incapable of fulfilment, because the office was not open, and there was no one to receive it. Where a limit of time is imposed by a statute there is always an implied condition that it is possible to perform the Act required. Now, it appears to me to have been impossible to perform the act in question, therefore if we were to hold that in consequence of the impossibility of performing it there was an implied obligation to lodge the reclaiming-note earlier, we should, I think, be construing the statute in a way not meant. I am consequently of opinion that we should sustain the competency of the reclaiming-note. In so deciding I do not interfere with the authority of the case of Lockhart v. Cumming, and I should be sorry to do so, as we have not only the authority of that case by itself, but its authority was expressly reserved in the case of Joel v. Gill, where a distinction was drawn between the circumstances upon which the decisions in the two cases were grounded.

Lord Mure—I am of the same opinion. Where a party lodges a reclaiming-note on the first possible opportunity beyond the ten days I think it is still a good reclaiming-note. If we were to hold otherwise we should be shortening the time permitted by the statute.

Lord Shand and Lord Adam concurred.

The case was therefore sent to the roll.

Page: 12↓

Counsel:

Counsel for the Pursuer (Reclaimer)— Rhind. Agent— William Officer, S.S.C.

Counsel for the Defender (Respondent)— Salvesen. Agent— D. Howard Smith, Solicitor.
1888