Scottish Court of Session Decisions

By section 106 of the Court of Session Act 1868 (31 and 32 Vict. c. 100) power is given to the Court to pass Acts of Sederunt for, inter alia, altering the course of proceeding prescribed in the Act. The Act of Sederunt, 10th March 1870, made in pursuance of this power, in section 3 (1) enacts: “The appellant shall, during session, within

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fourteen days after the process has been received by the Clerk of Court, print and box the note of appeal, record, interlocutors, and proof, if any; … and if the appellant shall fail, within the said period of fourteen days, to print and box or lodge and furnish the papers required as aforesaid, he shall be held to have abandoned his appeal, and shall not be entitled to insist except upon being reponed as hereinafter provided.”

Section 3 (3) of the Act of Sederunt enacts:—“It shall be lawful for the appellant, within eight days after the appeal has been held to be abandoned as aforesaid, to move the Court during session … to repone him to the effect of entitling him to insist in the appeal; which motion shall not be granted by the Court … except upon cause shown and upon such conditions as to printing and payment of expenses to the respondent or otherwise as to the Court … shall seem just.”

This was an appeal against an interlocutor of the Sheriff of Aberdeen ( Crawford) dismissing an appeal against an interlocutor of the Sheriff-Substitute there ( D. Robertson), whereby an interim interdict granted against the appellant was declared to be perpetual. The process was received by the Clerk on 29th February 1904, but the papers were not printed and boxed until the 2nd March.

The appellant moved in the Single Bills to be reponed, and explained that the agent's clerk in charge of the cause had counted off the fourteen days allowed for having the papers printed and boxed upon a diary which omitted Sundays, and he had consequently exceeded the period by two days. He argued that the matter was entirely in the discretion of the Court, and as no hurt was being done to the respondent, and there was no gross carelessness to be punished, it would be inequitable to make him suffer the penalty entailed by the omission— Walker v. Reid, May 12, 1877, 4 R. 714, 14 S.L.R. 502; Boyd, Gilmour, & Company v. Glasgow and South-Western Railway Company, November 16, 1888, 16 R. 104, 26 S.L.R. 84.

Argued for the respondent—There was no discretion in the Court to waive the requirements of the Act of Sederunt, and reponing was only competent upon cause shown. Such an excuse as was here offered was quite insufficient— Taylor v. Macilwain, October 18, 1900, 3 F. 1, 38 S.L.R. 1; Bennie v. Cross & Company, March 8, 1904, 41 S.L.R. 381.