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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Henderson v. Henderson [1888] ScotLR 26_11 (17 October 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0011.html Cite as: [1888] SLR 26_11, [1888] ScotLR 26_11 |
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Page: 11↓
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By the 20th section of the Personal Diligence (Scotland) Act ten days are allowed for reclaiming against interlocutors of a Lord Ordinary loosing arrestments. An interlocutor loosing arrestments was pronounced on the last Wednesday of the summer session. The reclaiming days consequently expired on a Saturday in vacation, on which day the office was closed. The reclaiming-note was lodged on the following Tuesday, the first day after expiry of the reclaiming days on which the office was open. Held that the reclaiming-note was lodged in time.
This was an action of count, reckoning, and payment brought by Andrew Henderson against Mrs Isabella Burd or Henderson. In virtue of a warrant of arrestment contained in the summons the pursuer arrested the funds of the defender in the hands of the Union Bank of Scotland (Limited). The defender presented a petition to the Lord Ordinary craving to have the arrestments loosed, and the Lord Ordinary ( Lee) on 18th July 1888 pronounced this interlocutor:—“The Lord Ordinary having heard counsel on the foregoing petition, on consignation of the sum of One hundred and twenty pounds in the National Bank of Scotland (Limited), Recals the arrestments above referred to, and decerns.”
The Personal Diligence (Scotland) Act 1838 (1 and 2 Vict. cap. 114), sec. 20, provides that such judgment shall be subject to the review of the Inner House by a reclaiming-note duly lodged within ten days from the date thereof.
The pursuer reclaimed, but the reclaiming-note, which in terms of the statute was due on Saturday 28th July, was not lodged till Tuesday 31st July. It appeared that in vacation the office was only open on Tuesdays, Wednesdays, and Thursdays.
The respondent objected to the competency of the reclaiming-note, and argued that it could not be received, not having been duly lodged within the time allowed by the Personal Diligence Act. Though the office was shut there was no difficulty in lodging the note at the Clerk's house, or posting it to him at the Register House— Lockhart v. Gumming, May 27, 1851, 13 D. 996; Ross v. Herde, March 9, 1882, 9 R. 710.
The reclaimer argued—(1) The reclaiming days falling in vacation the note was in time if lodged before the first box-day—Bankruptcy Act 1856 (19 and 20 Vict. cap. 79), sec. 171; Joel v. Gill, January 11, 1860, 22 D. 357; Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 94 and 107. (2) The office not being open in vacation except on Tuesdays, Wednesdays, and Thursdays, the reclaiming-note was in time as lodged on the first possible day after the expiry of the ten days. There was no obligation to lodge at the Clerk's house, or necessity that the Clerk's house should be open, or even should be in Edinburgh— Craig v. Jex Blake, March 16, 1871, 9 Macph. 715; Russell v. Russell, November 12, 1874, 2 R. 82; Bain v. Adam, February 7, 1884, 21 S.L.R. 389. The defender had suffered no prejudice by the delay.
At advising—
The case was therefore sent to the roll.
Page: 12↓
Counsel for the Pursuer (Reclaimer)— Rhind. Agent— William Officer, S.S.C.
Counsel for the Defender (Respondent)— Salvesen. Agent— D. Howard Smith, Solicitor.
