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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bain and Another v. Adam and Another [1884] ScotLR 21_389 (7 February 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0389.html Cite as: [1884] SLR 21_389, [1884] ScotLR 21_389 |
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Page: 389↓
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Objection to the competency of a reclaiming-note and notice of motion to vary issues, on the ground that they had not been “presented” in terms of the statute, because, although “lodged,” they had not been also “boxed” in due time, repelled.
In an action of damages for slander at the instance of Mrs Jessie Paterson or Bain and her husband against Mrs Margaret Macarthur or Adam and her husband, the Lord Ordinary on 29th January 1884 pronounced this interlocutor…. “Holds the issues, No. 8 of process, as adjusted and settled; approves of the same as now authenticated accordingly; and appoints the same to be the issues for the trial of the cause.”
By the Court of Session Act 1868 (31 and 32 Vict, c. 100), sec. 28, and A.S. 10th March 1870, sec. 1, sub-sec. 5, and sec. 2, an interlocutor appointing proof shall be final unless within six days from its date the parties, or either of them, “shall present a reclaiming-note against it to one of the Divisions of the Court, by whom the cause shall be heard summarily:…. Provided always, that it shall be lawful to either party within the said period, without presenting a reclaiming-note, to move the said Division to vary the terms of any issue that may have been approved of by an interlocutor of the Lord Ordinary.”
A reclaiming-note against the interlocutor of 29th January, above quoted, and a notice of motion to vary the issues, were lodged with the Clerk by the defenders on the 4th, but not boxed until the 5th of February. The pursuer objected to the competency of the reclaiming-note, and of the notice of motion, on the ground that they had not been “presented” to the Court in terms of sec. 28, because although lodged on the sixth day after the interlocutor had been pronounced they had not been “boxed” until the seventh.
Argued for the pursuers (respondents):—This was an interlocutor appointing proof— Mason v. Stewart, Feb. 21, 1877, 4 R. 513. The “lodging” of a reclaiming-note would not bring it into the Single Bills, it would require to be “boxed.” In A. S. 11th July 1828, sec. 79, the word “presenting” must be construed with reference to sec. 18 of 6 Geo, IV. cap. 120, and meant “print and put into the boxes.” In A. S. 24th Dec. 1838 (A. S. to regulate proceedings in the Bill Chamber), the expression in sec. 5 was “marked and boxed.” In sec. 6 of the Distribution of Business Act 1857, the word “boxed” occurred alone. In sec. 3 of the Conjugal Rights Act 1861, the expression was “lodging and boxing.”— Ross v. Herde, March 9, 1882, 9 R. 710, 19 S. L. R. 481.
Answered for the defenders (reclaimers):—When a reclaiming-note was “lodged” the case was brought into the Division, for the reclaiming—note was the paper which went into the hands of the clerk. In the Cessio Bonorum Act (6 and 7 Will. IV. c. 56, sec. 8) the term was “lodged,”—M'Laren's Procedure Acts, p. 251; Robertson v. Levack, May 17, 1828, 6 S. 824.
At advising—
I have only to add, that while I think the lodging of a reclaiming-note in process is a presentment to that Division of the Court by whom the cause is to be heard, I do not think the parties are thereby relieved from boxing the note to the Court in due time. If the note is not boxed immediately after it has been lodged, I think there must be a penalty on the party or the agent for the omission. But while I should be sorry that there was any relaxation in regard to timeous boxing, I do not think that, looking to the terms of the 28th section of the Court of Session Act of 1863, we can sustain the objection.
The Court repelled the objection.
Counsel for the Pursuers (Respondents)— M'Kechnie. Agent— H. W. Cornillon, S.S.C.
Counsel for the Defenders (Reclaimers)— Pearson. Agents— John Clerk Brodie & Sons, W.S.
