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The A.S., 16th February 1841, provides (sec. 36) that where the party against whom the verdict has been given in a jury trial held during session intends to apply for a new trial without lodging a bill of exceptions, he must give notice of a motion for a rule to show cause why the verdict should not be set aside within ten days of the trial of the cause, and (sec. 44) lodge a copy of the notice with the Keeper of the Inner House Rolls. Held ( a) that the ten days referred to in sec. 36 were the ten days next ensuing, whether in session or vacation; ( b) that the provision for lodging a copy of the notice with the Keeper of the Rolls was peremptory and not merely directory, and therefore that where such copy was not lodged within the specified ten days, the motion could not be entertained.
The Act of Sederunt, 16th February 1841, regulating proceedings in jury causes, contains the following provision (sec. 36)— “When the party against whom the verdict has been found intends, without lodging a bill of exceptions, to apply for a new trial in causes which have been tried at the sittings after the end of the session, or during the Christmas recess, or at the Circuits, such party shall give notice of a motion for a rule to show cause why the verdict should not be set aside and a new trial granted, within six days after the commencement of the next session, or of the meeting of the Court after the Christmas recess, or ten days after the trial of the cause, if the cause has been tried during the session, or immediately before the sitting down of the session.” By section 44 it is provided, inter alia— “When the motion is to be made before the Division, a copy of the motion must also be lodged with the Keeper of the inner house rolls.”
In the trial of an action by W. B. Campbell against the Caledonian Railway Company, the jury on 15th July 1899 found for the pursuer.
Within ten days thereafter the Caledonian Railway Company gave notice to Campbell of their intention to move for a new trial. They did not, however, lodge a copy of the notice with the Keeper of the Inner House Rolls.
The Court rose for the long vacation on July 18, and resumed on October 17. On 21st October the Caledonian Railway Company
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gave notice to the Keeper of the Rolls of their intention to move for a rule. On the case being called in the Single Bills, counsel for the pursuer objected to the competency, and argued that the provisions of the Act of Sederunt had not been complied with, in respect that the notice given in July was not given to the Keeper of the Rolls, and the notice given in October was more than ten days from the date of the trial of the cause. The notice to the Keeper of the Rolls was indispensable, otherwise there was no provision whereby the case could be brought promptly before the Court, and the ten days referred to were the ten days ensuing— Henderson v. Henderson, October 17, 1888, 16 R. 5. If the A.S. had meant sederunt-days, it would have said so.
Argued for the appellants— The notice given in July was sufficient, because it was given to the opposite party, which was the essential thing. If not, the notice given in October was good, as it was within ten sederunt days of the date of the trial— Cockburn v. Hogg, February 16, 1897, 24 R. 529. In any event, the provisions of the Act of Sederunt were directory and not peremptory, and the Court might dispense with their observance— Boyd, Gilmour & Company v. Glasgow and South-Western Railway Company, November 16, 1888, 16 R. 104.
I therefore think that the notice to the keeper of the rolls is an integral part of the provision for the disposal of appeals, and those provisions in the Act of Sederunt have by the antecedent statutes the effect of rules statutorily authorised.
The Court refused the motion.
Counsel for the Defenders— Deas. Agents— Hope, Todd, & Kirk, W.S.
Counsel for the Pursuer— Jameson, Q.C.— Constable. Agent— Andrew Gordon, Solicitor.