Scottish Court of Session Decisions

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Cite as: [1890] ScotLR 27_259_1, [1890] SLR 27_259_1

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Thursday, January 16. 1890.

[ Lord Wellwood, Ordinary.

27 SLR 259_1

More and Others

v.

Watt's Trustees.

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Competency
Subject_4Boxing on Monday where Reclaiming — Days had Expired on Saturday — Judicature Act (6 Geo. IV. cap. 120), sec. 18.
Facts:

An objection was taken to the competency of a reclaiming-note that it had been boxed on Monday, January 13, instead of on the previous Saturday, which was the last of the reclaiming-days. Objection sustained.

Reference made to the remedies under the Administration of Justice and Appeals Act 1808 (48 Geo. III. cap. 151), sec. 16, and Steedman v. Steedman, March 19, 1887, 14 R. 682.

Headnote:

By the 18th section of the Judicature Act (6 Geo. IV. cap. 120) it is provided that “When any interlocutor shall have been pronounced by the Lord Ordinary, either of the parties dissatisfied therewith shall be entitled to apply for a review of it to the Inner House of the Division to which the Lord Ordinary belongs, provided that such party shall, within twenty-one days
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from the date of the interlocutor, print and put into the boxes appointed for receiving the papers to be perused by the Judges a note reciting the Lord Ordinary's interlocutor, and praying the Court to alter the same in whole or part; … and the party so applying shall, along with his note as above directed, put into the boxes printed copies of the record authenticated as before, and shall at the same time give notice of his application for review by delivery of six copies of the note to the known agent of the opposite party; and it shall in no case be competent for either party, from and after the said 11th day of November 1825, to bring any interlocutor of the Lord Ordinary under review of the Inner House by the form of reclaiming-petition as now in use, but only in the mode thus directed.”

By the 16th section of the Administration of Justice and Appeals Act (48 Geo. III. cap. 151) it is provided that “If the reclaiming-note 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 21st December 1889 the Lord Ordinary in an action of multiplepoinding pronounced the following interlocutor:— … “Repels the claims for the Reverend William Adam Stark, the claimants Robert Dempster and others, and the claimants Mrs Eliza Romanes Dempster or More and others, and decerns.” The reclaiming-days expired on Saturday the 13th January 1890. On Saturdays the box-office is closed at 12 noon. The claimants Mrs More and others reclaimed, and on Saturday 13th January lodged but made no attempt to box the reclaiming-note.

On Monday 15th January, being twenty-two days from the date of the Lord Ordinary's interlocutor, they boxed their reclaiming-note. When the reclaiming-note was called in the Single Bills the respondents objected that it was not time-ously boxed under the 18th section of the Judicature Act (6 Geo. IV. cap. 120).

Argued for the reclaimers—The reclaiming-days did not elapse until midnight on Saturday, but the box-office was not open after 12 o'clock on that day. Unless boxing was competent on Monday the reclaimers had only twenty days and a-half within which to reclaim instead of twenty-one as provided by the Judicature Act. They had lodged, and in Bain's case lodging was held equivalent to boxing. In Lothian's case there had not been delivery of copies to agents within the twenty-one days as required by the Judicature Act, but that was not held an objection— Henderson v. Henderson, October 17, 1888, 16 R. 5; Bain v. Allan, February 29, 1884, 11 R. 650; Lothian v. Tod, March 3, 1829, 7 S. 525; Hume v. Maclellan, February 21, 1855, 17 D. 477.

Argued for the respondents—The Judicature Act was clear, and the case of Ross, from which this case could not be distinguished, was clear. The cases referred to by the reclaimers were under different statutes with the exception of Lothian's case, and in that there was substantial compliance with the Judicature Act— Ross v. Herde, March 9, 1882, 9 R. 710; Miller v. Simpson, December 9, 1863, 2 Macph. 225.

At advising—

Judgment:

Lord President—I should have been very glad if we could have got over this objection. But unless we were directly to reverse our judgment in the case of Ross I do not see how we can avoid sustaining it, as no attempt was made to box the note on Saturday, which was the last of the reclaiming-days. Iamaccordinglymost unwillingly but clearly of opinion that this is a good objection. The reclaimers can still avail themselves of the remedy provided by 48 Geo. III. cap. 151, sec. 16, in a case where the reclaiming-dayshaveexpiredfrom “mistake or inadvertency.”

Lord Shand—This case is expressly determined by the case of Ross. The day expired at twelve o'clock on Saturday. There was nothing to prevent the party boxing his papers on that day. The box-office is open from eleven till twelve o'clock, and I cannot see that there is any peculiarity in the fact that the day on which the reclaiming-note fell to be boxed was a Saturday. The reclaimers have not even attempted to take the full benefit of that day by getting the clerk to accept copies after the hour at which the office closed, and mark them as boxed. The boxing took place on Monday—that is to say, within twenty-two days instead of within twenty-one days. If we sustain the reclaimers' argument we shall be allowing the parties twenty-two days instead of twenty-one. Accordingly, while I should have been disposed to hold if anything equivalent to boxing had taken place on Saturday that this would have been sufficient, I do not see my way to holding that boxing on the twenty-second day is boxing on the twenty-first. As your Lordship has pointed out, there is still a remedy to the parties, of which the latest illustration is the case of Steedman, 14 R. 682.

Lord Adam—I cannot distinguish this case from that of Ross. This is just the kind of case which the provisions of 48 Geo. III. cap. 151, sec. 16, are intended to meet, and that being so, I have the less reluctance in sustaining the objection of incompetency.

Lord M'Laren—Under the Judicature Act it is clear that the first requirement is the presenting of the reclaiming-note by lodging a signed note with the clerk. There is also another requirement as to thedelivery of copies. These two requirements appear to me identical as regards their obligatory character, and if the clause relating to delivery of copies to agents has been held as merely directory, and as under no sanction of nullity, I think the same applies to boxing. But by a series of decisions this requirement has been held essential to presenting. I think these decisions—if I may say so — are erroneous, as inconsistent with the other decision I have referred to. But in a point

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of practice like this I think it better to adhere to these decisions, and to hold that the reclaiming-note has not been presented in time.

The Court sustained the objection.

Counsel:

Counsel for the Reclaimers— J. Galbraith Miller. Agent— W. G. L. Winchester, W.S.

Counsel for the Respondents— W. Campbell. Agents— Welsh & Forbes, S.S.C.
1890