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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Allan v. Sandeman [1881] ScotLR 18_366 (4 March 1881) URL: http://www.bailii.org/scot/cases/ScotCS/1881/18SLR0366.html Cite as: [1881] SLR 18_366, [1881] ScotLR 18_366 |
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Page: 366↓
[Sheriff-Substitute of Lanarkshire.
Held that an application presented after the expiry of eight days, but within fourteen days from the date on which an appeal was received by the clerk, praying the Court to extend the time for printing in respect that the process was before the reporters on the probabilis causa litigandi, was incompetent and fell to be refused.
The Act of Sederunt of 10th March 1870 provides as follows with regard to appeals from Inferior Courts:—
Section 3, sub-section 1—“The appellant shall, during session, within 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, unless within eight days after the process has been received by the Clerk he shall have obtained an interlocutor dispensing with printing in whole or in part; in which case the appellant shall only print and box as aforesaid those papers the printing whereof has not been dispensed with … and if the appellant shall fail within the said period of fourteen days to print and box … the papers required as aforesaid he shall be held to have abandoned his appeal, and shall not be entitled to insist therein except upon being reponed as hereinafter provided.”
Sub-section 3 of the same section provides—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 … to repone him to the effect of entitling him to insist in the appeal, which motion shall not be granted … 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.”
On 21st February 1881 Elizabeth Goudie or Allan appealed to the First Division against an interlocutor of the Sheriff-Substitute of Lanarkshire in an action at her instance against Richard Sandeman. Thereafter the appellant having applied for admission to the poor's roll in the Court of Session, the Court on 25th February remitted the application to the reporters on probabilis causa litigandi. On 4th March the appellant presented a note to the Lord President setting forth that she was without funds wherewith to print the record, interlocutors, and proof, and that the period of fourteen days within which under the provision of the Act of Sederunt above quoted she was required to print and box the same would expire on 7th March, before which date the application for the benefit of the poor's roll would not be disposed of by the reporters. She therefore prayed the Court “to dispense hoe atatu with printing, or otherwise to extend the time for printing until the application for the benefit of the poor's roll should be disposed of.
The respondent opposed the motion, on the ground that it had not been made within eight days of the process having been received by the Clerk.
The Court refused the motion, holding it to be incompetent because not presented within eight days of the process having been received by the Clerk, but observed that the appellant might still, under sub-section 3, move the Court, within eight days after the appeal should be held to have been abandoned under sub-section 1, to repone her to the effect of entitling her to insist in the appeal.
Counsel for Appellant— Sym. Agent— W. T. Sutherland, S.S.C.
Counsel for Respondent— J. P. B. Robertson. Agent— M. Macgregor, S.S.C.
