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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cockburn v. Hogg [1897] ScotLR 34_401 (18 February 1897) URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0401.html Cite as: [1897] ScotLR 34_401, [1897] SLR 34_401 |
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Page: 401↓
Held that with regard to a notice of motion to show cause why a new trial should not be granted, the “February Week” is in the same position as the Christmas recess.
By section 36 of the Act of Sederunt regulating proceedings in jury causes, dated 16th February 1841, it is enacted—“When the party against whom the verdict has been found intends, without lodging a bill of exceptions, to apply for a new trial in causes which have been tried at the sittings after the end of the session, or during the Christmas recess, or at the circuits, such party shall give notice of a motion for a rule to show cause why the verdict should not be set aside and a new trial granted, within six days after the commencement of the new session or the meeting of the Court after the Christmas recess, or ten days after the trial of the cause if the cause has been tried during the session or immediately before the sitting down of the session.”
By section 4 of the Court of Session Act 1868 (31 and 32 Vict. cap. 100) it is provided, inter alia—“It shall be lawful for the Court at the time of the Christmas recess to adjourn for a period not exceeding fourteen days, and to adjourn at such time during the month of February as shall be most convenient, for a period not exceeding seven days.”
The jury trial in the action at the instance of Peter Cockburn and Others v. Peter Hogg and Others took place before the Lord Justice-Clerk on Saturday, 6th February. The jury returned a verdict at 6·30 p.m.
On February 6th the Court adjourned for the “February Week,” and did not sit till Tuesday, February 16th.
On February 17th the defender gave notice of a motion for a rule to show cause. When this motion appeared in the Single Bills of February 18th the pursuer opposed the motion on the ground that the notice was too late according to the Act of Sederunt of 1841, section 36, as it had not been given till later than ten days after the trial.
Argued for the defender—The “February Week” was instituted after the Act of Sederunt 1841, and was therefore not provided for specifically. But the “February Week” was a recess of the same kind as the Christmas recess, and should be considered to be on the same footing as the latter.
Lord Justice-Clerk—I think we must allow this motion.
The Court allowed the motion.
Counsel for Pursuer— Clyde. Agents— Reid & Guild, W.S.
Counsel for Defender— T. B. Morison. Agent— W. Hamilton, S.S.C.
