Taylor v Macilwain

JurisdictionScotland
Judgment Date18 October 1900
Date18 October 1900
Docket NumberNo. 1.
CourtCourt of Session
Court of Session
1st Division

Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.

No. 1.
Taylor
and
Macilwain.

Process—Appeal—Competency—Sheriff—Failure to Lodge Prints—Power of Court to dispense with observance of Act of Sederunt—A. S. 10th March 1870, section 3.—

In an appeal from the Sheriff Court the appellant omitted to lodge prints within fourteen days after the process had been received by the Clerk of Court as required by the A. S. 10th March 1870, section 3.* The omission was due to inadvertence on the part of the appellant's agent.

Objection to the competency of the appeal sustained.

Opinion (by the Lord President and Lord Kinnear) that the Court had no power to dispense with the observance of the provisions of the section.

This was an action by Charles Dorward Taylor, 15 Piershill Place, Edinburgh, against Samuel Macilwain, wholesale fruit and vegetable merchant, 4 Belgrave Street, Glasgow, concluding for a sum of £250 in name of damages. The action was raised in the Sheriff Court at Glasgow, and on 16th August 1900 the Sheriff-substitute (Guthrie)

pronounced an interlocutor allowing a proof, and assigning the 3d of December following as a diet of proof.

On 30th August the pursuer noted an appeal (under section 40 of the Judicature Act, 1825) to the First Division of the Court of Session, and the process was received by the Clerk of Court on 4th of September 1900. The prints of the note of appeal, record, and interlocutors were not deposited with the Clerk of Court till the 22d September. The prints were duly boxed to the Judges on the 27th September, the box-day next following the 4th September.

On the case appearing in the Single Bills on 18th October, counsel for the defender objected to the competency of the appeal, on the ground that the appellant had failed to deposit the prints within fourteen days after the 4th September as required by the Act of Sederunt of 10th March 1870, section 3 (2).1

The appellant's counsel stated that the omission was due to inadvertence on the part of the agent. He argued that the Court had power to dispense with strict observance of this provision, and had done so in the cases of Young v. BrownSC2 and Boyd, Gilmour, & Company v. Glasgow and South-Western Railway CompanySC3 These cases were decisions on this section, and in the latter the circumstances were precisely the same as in this case. The case of Boyd, Gilmour, & CompanySC3 was decided by the Second Division after consultation with the Judges of the First Division, and must be taken as conclusive on the point of practice. The ground upon which the Court went in that case was not that there was any ‘good cause’ shewn for the omission, but simply that no prejudice was caused thereby to the respondent. In this case it could not be said that a delay of four days in vacation in depositing prints at the Register House could cause prejudice or inconvenience. The Court had relaxed in other similar cases strict observance of Acts of Sederunt, for instance, as to printing and boxing papers which had been printed and boxed in a previous appeal in the same case.4

Lord President.—The question argued depends upon the construction of section 3 of A. S. 10th March 1870. That Act of Sederunt was made under the authority of 31 and 32 Vict. cap. 100, section 106, which gave power to the Court to make alterations in the statutory procedure, so that the provisions of the Act of Sederunt have very much the same imperative character as if they had occurred in the statute itself. The second subsection of section 3 contains an imperative direction in the following terms:—(His Lordship quoted the subsection).

If the Act of Sederunt had merely directed that certain things should be done within a...

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