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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v. Lattimer [1881] ScotLR 19_322 (20 December 1881)
URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0322.html
Cite as: [1881] SLR 19_322, [1881] ScotLR 19_322

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SCOTTISH_SLR_Court_of_Session

Page: 322↓

Court of Session Inner House First Division.

[Sheriff of the Lothians.

Tuesday, December 20. 1881.

19 SLR 322

Anderson

v.

Lattimer.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_4Where Proof not duly Boxed — Act of Sederunt March 10, 1870, sec. 3, sub-sec. 1.
Facts:

Where an appellant duly boxed the note of appeal, record, and interlocutors in terms of the Act of Sederunt March 10, 1870, sec. 3, sub-sec. 1, but, through the mistake of his agent, omitted timeously to box the proof, the Court repelled an objection to the competency of the appeal, but found the appellant liable in modified expenses.

Headnote:

This was an appeal from the Sheriff of the Lothians. When the case appeared in the Single Bills the respondent objected to the competency of the appeal, on the ground that the appellant had not complied with section 3, sub-section 1, of the Act of Sederunt 10th March 1870, which provided that “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 the Court should have dispensed with printing, and if the appellant should fail within the said period of fourteen days to print and box the papers required as aforesaid it was further provided that he was to be held to have abandoned his appeal, and not entitled to insist therein except upon being reponed, as provided by the 3d sub-section of the same section. The process in the present case was received by the Clerk of the First Division on December 2, and the note of appeal, record, and interlocutors were duly boxed thereafter in terms of the above provision of the Act of Sederunt. But there was a proof, which the appellant omitted to box within the prescribed period, owing, as he averred, to the mistake of one of his agent's clerks, and he endeavoured to comply with the Act of Sederunt by printing and boxing the proof as soon as the omission was noticed.

The appellant cited Young v. Brown, February 19, 1875, 2 R. 456; Walker v. Reid, May 12, 1877, 4 R. 714; Muir v. Mackenzie, October 15, 1881, 19 Scot. Law Rep. 3.

The respondent cited Robertson v. Barclay, November 27, 1877, 5 R. 257.

 Judgment:

At advising—

Lord President—I think that this case falls within the principle of Young v. Brown rather than that of Robertson v. Barclay. In the case of Robertson v. Barclay there was an entire failure to print. The appellant had taken no step—he had not even attempted to take any step—to print and box the appeal, and it was there held that he had no excuse at all, except an obviously trivial attempt to palliate his default on the ground of some verbal and half-hearted communings between the parties with a view to a settlement. In the case of Young v. Brown, on the other hand, there was a failure to print a part merely of what is required by the Act of Sederunt, no doubt a part of less importance in the discussion of the case than what has been omitted here;

Page: 323↓

but I do not think that the relative importance of the part which has been omitted makes any difference on the question whether the Act of Sederunt has been violated or not. The Act equally requires both the note of appeal and the proof to be printed, and if the omission here is fatal it must equally be fatal whatever the omitted portion may be. The circumstance that one part is of more use in the ultimate discussion of the case makes no difference, for the note of appeal must be here just as much as the proof before the Court can consider the case.

Lord Mure and Lord Shand concurred.

Lord Deas was absent.

The Lords repelled the objection to the competency of the appeal, and sent the case to the roll, finding the appellant liable in three guineas of expenses.

 Counsel:

Counsel for Appellant— Brand. Agent— D. Turner, S.L.

Counsel for Respondent— Campbell Smith. Agents— Horne, Horne, & Lyell, W.S.

 1881

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URL: http://www.bailii.org/scot/cases/ScotCS/1881/19SLR0322.html