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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Blackburn v. Sharp & Another [1905] ScotLR 43_209 (21 December 1905) URL: http://www.bailii.org/scot/cases/ScotCS/1905/43SLR0209.html Cite as: [1905] SLR 43_209, [1905] ScotLR 43_209 |
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Page: 209↓
Section 54 of the Court of Session Act 1868 enacts that where the leave of the Lord Ordinary has been obtained, “a reclaiming note, presented before the whole cause has been decided in the Outer House, may be lodged within ten days from the date of the interlocutor granting leave with one of the clerks of the Division of the Court in which the cause depends, without transmission of the process or any part thereof.”
Where the time for lodging a reclaiming note under section 54 of the Court of Session Act 1868 expired on a day when the clerk's office was not open, held that the reclaiming note was competently lodged on the first day thereafter on which the clerk's office was open.
In an action pending in the Outer House the Lord Ordinary ( Dundas) pronounced an interlocutory judgment on 6th December 1905, and on the same day granted leave to the defenders in the action to present a reclaiming note against this interlocutor.
The ten days within which, under the provisions of section 54 of the Court of Session Act 1868, a reclaiming note might be lodged expired on Saturday 16th December. The clerk's office in the Register House is not open on Saturdays.
The reclaiming note was boxed on Saturday, 16th December, but was not lodged till the following Monday.
On December 21 the reclaimers enrolled the case in the Single Bills for the purpose of moving that it be sent to the Surnmar Roll.
Counsel for the respondent moved the Court to refuse the reclaiming note as incompetent in respect that it had not been timeously lodged. He argued that the rovisions of section 54 of the Court of Session Act 1868 requiring the reclaiming note to be lodged within ten days were imperative— Ross v. Herde, March 9, 1882, 9 K. 710, 19 S.L.R. 481; Watt's Trustees v. More, January 16, 1890, 17 R. 318, 27 S.L.R. 259.
The reclaimers argued that the cases founded on by the respondent had no application, as in both these cases there had been a failure to box within the required number of days from the date of the interlocutor reclaimed against. In this case the reclaiming note was timeously boxed on Saturday, 16th December, and it was not lodged on that day simply because the clerk's office was closed on Saturdays. That being so, the provisions of section 54 of the Act were sufficiently complied with by the reclaiming note being lodged on the first day thereafter on which the clerk's office was open— Henderson v. Henderson, October 17, 1888, 16 R. 5, 26 S.L.R. 11.
The Court repelled the respondent's objection to the competency of the reclaiming note.
Counsel for the Pursuer and Respondent— Blackburn. Agents— Mackenzie & Black, W.S.
Counsel for the Defenders and Reclaimers — W. T. Watson. Agents— Reid & Crow, Solicitors.
