Scottish Court of Session Decisions

Subject_1Process
Subject_2Appeal
Subject_3Appeal for Jury Trial
Subject_4Competency — Time For Appealing — Court of Session Act 1825 (6 Geo. IV. C. 120) (judicature Act), sec. 40 — Act Of Sederunt, 11th July 1828, sec. 5.

The Court of Session Act 1825 (6 Geo. IV. c. 120) (Judicature Act), section 40, which authorised advocation from inferior courts for jury trial, did not enact that advocation must be made within any specified number of days after the interlocutor allowing a proof. The Act of Sederunt, 11th July 1828, enacts (section 5) that if “neither party, within fifteen days in the ordinary case, and in causes before the courts of Orkney and Shetland within thirty days, after the date of such interlocutor allowing a proof, shall intimate in the inferior court the passing of a bill of advocation, such proof may immediately thereafter effectually proceed in the inferior court, unless reasonable evidence shall be produced to the inferior judge that a bill of advocation has been presented, or the judge be satisfied that effectual measures have been taken for presenting it.”

In an action of damages for seduction and for aliment for an illegitimate child, the Sheriff-Substitute, by interlocutor, dated 17th December 1900, allowed a proof. On 3rd January 1901 the pursuer marked an appeal for jury trial. The defender objected to the competency of the appeal on the ground that it had not been marked within fifteen days after the interlocutor allowing a proof. The Court, following Davidson v. Davidson's Executor, July 7. 1891, 18 R. 1069; Williams v. Watt & Wilson, May 28, 1889, 16 R. 687; and Kinnes v. Fleming, January 15, 1881, 8 R. 386, dismissed the appeal as incompetent.