Scottish Court of Session Decisions

On 27th May 1909 Burroughes & Watts, Limited, London, brought an action against James Watson, builder, Uddingston, in which they concluded (first) for delivery of certain billiard tables and accessories delivered by them to the defender under a hire-purchase agreement, and (second) for £500 damages in respect of the defender's refusal to make delivery. A counter action at the instance of Watson against Burroughes & Watts, in which the pursuer sought repayment of the instalments paid by him on the ground that the tables were disconform to contract, was on 20th October 1909 conjoined with the action at the instance of Burroughes & Watts. Thereafter on 13th May 1910 the Lord Ordinary assoilzied the defenders in the action at Watson's instance, and in the action at the instance of Burroughes & Watts found the pursuers entitled to damages.

The defender Watson reclaimed.

On 27th May 1910 the respondents Burroughes & Watts presented a note to the Lord President craving his Lordship to move the Court to refuse the reclaiming note in respect that intimation and service thereof had not been made upon their agents until after the reclaiming note had been moved in the Single Bills and the case sent to the roll.

Argued for respondents— Esto that in the cases of Lothian v. Tod, March 3, 1829, 7 S. 525, and Campbell's Trustees v. Campbell, March 7, 1868, 6 Macph. 563, 5 S.L.R. 364, the Court refused to dismiss a reclaiming note, these were cases in which the opposite agents had got copies of the reclaiming note before the case was called. Here that was not so, and the reclaiming-note therefore fell to be refused— Bell v. Warden, July 2, 1830, 8 S. 1007.

Counsel for the reclaimer stated that the printer's failure to deliver copies of the reclaiming note, which was boxed on 23rd May and sent to the roll on 25th May, was due to the 24th of May being a public holiday in Edinburgh. In these circumstance's, and looking to the facts that the provisions of the statute were directory merely and not imperative, and that the respondents had suffered no prejudice, he submitted that the reclaiming note should be received. He cited Allan's Trustee v. Allan & Sons, October 23, 1891, 19 R. 15, 29 S.L.R. 28.