Campbell v Caledonian Railway Company
| Jurisdiction | Scotland |
| Judgment Date | 24 October 1899 |
| Date | 24 October 1899 |
| Docket Number | No. 8. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
ProcessJury TrialNotice of motion for new trialLodging copy of notice with Keeper of RollsTime A. S. 16th February 1841, secs. 36 and 44.
The A. S., 16th February 1841, provides (sec. 36) that where a jury trial has been held during session, a party intending to apply for a new trial without lodging a bill of exceptions must give notice within ten days after the trial, and (sec. 44) that a copy of the notice must be lodged with the Keeper of the Rolls of the Inner-House. Held (1) that the ten days referred to are the ten days next ensuing after the trial, whether they are or are not sederunt days, and (2) that the provisions of sec. 44 are peremptory and not merely directory.
In an action at the instance of W. B. Campbell against the Caledonian Railway Company, which was tried by jury, the pursuer on 15th July 1899 obtained a verdict. The last sederunt day of the summer session was 18th July, and the winter session commenced on 17th October. The defenders on 22d July 1899 gave notice to the pursuer of a motion for a new trial, but they lodged no copy of the notice with the Keeper of the Inner-House Rolls.*
On 21st October 1899 the defenders gave a second notice of a motion for a new trial to the pursuer, and lodged with the Keeper of the Inner-House Rolls a copy of the notice.
On 24th October when the case was called in the Single Bills, the pursuer moved the Court to dismiss the notices as incompetent,the
first notice on the ground that no copy of the notice had been lodged with the Keeper of the Rolls, and the second notice on the ground that it was not given within ten days after the trial.1
Argued for the defenders;The first notice was in fact given to the agent of the pursuer, and the principal notice lodged in the Register House. The essential provisions of the A. S. were therefore complied with. The lodging of a copy with the Keeper of the Rolls was obviously of less importance, and it was not intended that failure to literally comply with that provision was to entail a forfeiture of right to a new trial. If, however, the first notice was bad, still the second was good. It was within ten sederunt days after the trial.2 The A. S. was not imperative but directory merely, and the Court would dispense with the observance of its provisions if no inconvenience was suffered by the opposite party.3
Lord President.I think the second...
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