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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macarthur v. Mackay [1914] ScotLR 466 (20 March 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0466.html
Cite as: [1914] ScotLR 466, [1914] SLR 466
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SCOTTISH_SLR_Court_of_Session
Page: 466↓
Court of Session Inner House First Division.
(Single Bills.)
v.
Facts:
The, Companies (Consolidation) Act 1908, sec. 181, provides with regard to appeals from orders made in the winding-up of a company—“(3) Provided also, in regard to orders or judgments pronounced in Scotland by a permanent Lord Ordinary to whom a winding-up has been remitted, that any such order or judgment shall be subject to review only by reclaiming note in common form, presented within fourteen days from the date of the order or judgment.…”
Held (after consultation with the Second Division) that sub-section (3) was imperative and not directory, and that accordingly a reclaiming note which had not been presented until after the expiry of the fourteen days was incompetent.
On 24th May 1913 J. R. Mackay, C.A., Glasgow, liquidator of the Motor Brougham and Cab Company, Limited, presented a note to the Lord Ordinary in the liquidation for approval of the “A” list of contributories, in which the name of the respondent A. J. MacArthur was entered as a shareholder. The respondent having lodged answers, in which he submitted that his name had been wrong fully included, the Lord Ordinary ( Cullen) on 12th February 1914 sanctioned the list. MacArthur reclaimed, the note being boxed on 5th March 1914.
On the note appearing in the Single Bills of 6th March 1914, counsel for the liquidator objected to its competency on the ground that it had not been presented within fourteen days as required by section 181 (3) of the Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69).
Argued for reclaimer—The provisions of the Companies (Consolidation) Act 1908 (8 Edw. VII, cap. 69), sec. 181 (3), were directory and not imperative, and the Court therefore had power to dispense with the regulation. The Court had construed section 18 of the Judicature Act 1825 (6 Geo. IV, cap. 120), which was in equally imperative terms, as merely directory— Burroughes & Watts, Limited v. Watson, 1910 S.C. 727, 47 S.L.R. 638. The liquidator had suffered no prejudice, and the note therefore should be received.
The
The note was advised on 20th March 1914, the opinion of the Court being delivered by
Page: 467↓
The Court refused the reclaiming note as incompetent.
Counsel for the Reclaimer— M. J. King. Agents— Simpson & Marwick, W.S.
Counsel for the Liquidator— M. P. Fraser. Agent— Harry H. Macbean, W.S.