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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Callender - Brodie v. Anderson & Co. [1897] ScotLR 35_4 (16 October 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/35SLR0004.html
Cite as: [1897] SLR 35_4, [1897] ScotLR 35_4
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
[
v.
Facts:
The agent of a party who proposed to reclaim against a judgment of the Lord Ordinary instructed his clerk to lodge the reclaiming-note on the first box-day during vacation. unknown to his employer, the clerk failed to lodge the note, and absconded. The note was thus not lodged until the second box-day, outwith the statutory period.
Held that the reclaiming-note was incompetent.
Section 18 of the Judicature Act enacts—“That when any interlocutor shall have been pronounced by the Lord Ordinary, either of the parties, if dissatisfied therewith, shall be entitled to apply for a review of it … provided that such party shall, within twenty-one days 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 in part … and … the party so applying
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shall, along with his note as above directed, put into the box printed copies of the record authenticated as above.” … It is provided by Act of Sederunt, July 11, 1828, section 79, that where the reclaiming-days expire after the close of session, they continue open till the first box-day in the vacation.
Mrs Anne Catharine Brodie or Callender-Brodie, of Idvies, Forfarshire, raised an action of suspension and interdict against Messrs William Anderson & Company to interdict them from entering upon certain woods on her property and cutting or removing trees thereon.
On 26th February 1897 the Lord Ordinary ( Stormonth Darling) granted interim interdict, and on 13th July he pronounced an interlocutor declaring the interdict perpetual.
The defenders lodged a reclaiming-note on September 30th, being the second box-day in vacation.
The pursuer objected to the reclaiming-note as incompetent in respect that it had not been lodged within the statutory period as provided by section 18 of the Judicature Act— Watt's Trustees v. More, January 16, 1890, 17 R. 318; Ross v. Herd, March 9, 1882, 9 R. 710.
The defenders explained that the reclaiming-note was printed and ready for boxing and lodging on the first box-day, and that a clerk in the employment of their agents had been sent up to box the note, and had been given the fee fund dues for lodging it in the Process Office of the Register House, but that it was discovered in his desk in September, the clerk having in the meantime left the office without informing his employers that he had not lodged the note.
The note was lodged on the second box-day.
Argued for reclaimers—They had done all in their power to comply with the statute, and it was through no fault of theirs that the note had not been boxed in time. Their case was therefore stronger than that of Watt's Trustees v. More, ante, where no attempt was made to box the note within the statutory period. This was not a case of “mistake or inadvertency,” so if this reclaiming-note were held incompetent they would have no means of bringing the judgment under review as provided in section 16 of the Act of 1808 (48 Geo. III. cap. 151).
The Court refused the reclaiming-note.
Counsel for the Complainer— Chree. Agents— John C. Brodie & Sons, W.S.
Counsel for the Respondents— Hunter. Agent— John Baird, Solicitor.