Scottish Court of Session Decisions

The Act of Sederunt, 11th July 1828, for carrying out the provisions of the Judicature Act 1825 (6 Geo. IV. cap. 12), provides—“79. It is declared that where the twenty-one days allowed by the statute for presenting a note reclaiming against an interlocutor of a Lord Ordinary in the Outer House expire during vacation or recess, the reclaiming-days continue open till the first box-day in the vacation; or if they expire during the recess, the reclaiming-days shall continue open till the box-day in the recess; or if they expire after the box-day in the recess, they shall continue open till the first sederunt-day after the recess.”

The Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11, limits reclaiming-days to ten except for judgments on the merits and decrees in absence.

The Act of Sederunt, 20th July 1853, following upon the Court of Session Act 1850, provides “That where the ten days therein mentioned expire during vacation or during any recess of the Court, they shall continue open till the first box-day in the vacation or till the box-day in the recess; or if they expire after the box-day in the recess, they shall continue open till the first sederunt-day after the recess.”

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 28, provides that a reclaiming-note against an interlocutor of the Lord Ordinary ordering proof must be presented within six days from the date of the interlocutor.

Alexander Mackenzie, labourer, Fortrose, sued Lucas & Aird, contractors, Fort William, for damages for personal injuries.

Upon 16th January 1894 the Lord Ordinary closed the record, and appointed issues for the trial of the cause to be adjusted on 23rd inst. Upon 30th January he pronounced this interlocutor—“Dispenses with the adjustment of issues: Allows the parties a proof of their respective averments on record on a day to be afterwards fixed.” The Court rose for recess upon Saturday 3rd and sat again upon Tuesday 13th February.

Upon 12th February the pursuer boxed a reclaiming-note against the interlocutor of 30th January.

The defenders objected to the competency of the reclaiming-note, and argued—This note had not been timeously presented within six days. It was true that the six days expired in vacation, but the clerk's office was open during a part of that time. The note should have been presented to the clerk on the first day the office was open, and that would have been compliance with the provisions of the statute. The note could have been boxed on the earliest opportunity, as lodging the principal note with the clerk was the most important part of duty in “presenting” the note— Bain, &c. v. Allan, &c., February 29, 1884, 11 R. 650. The relaxations which had been granted as to lodging reclaiming-notes on twenty-one days' and ten days' interlocutors had been given by special Acts of Sederunt—11th July 1828 and 20th July 1853—and could not

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be extended to reclaiming-notes of thiskind, which must be lodged within six days of the interlocutor granting proof.

The pursuer argued—The statutory words “present a reclaiming-note” were very indefinite. The intention of the Act was fulfilled if one of the two things necessary in presenting a reclaiming-note were done timeously; these were lodging the principal note in the clerk's hands and boxing copies of the note to the Court. The six days expired in vacation, and on the first day it was possible to do so, viz., February 12, the note was boxed— Henderson v. Henderson, October 17, 1888, 16 R. 5; Allan's Trustee v. Allan & Son, October 23, 1891, 19 R. 15. These cases held that where it was impossible to do what was ordered by the statute a reasonable compliance was all that could be asked.

At advising—