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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Barclay [1877] ScotLR 15_160 (27 November 1877) URL: http://www.bailii.org/scot/cases/ScotCS/1877/15SLR0160.html Cite as: [1877] SLR 15_160, [1877] ScotLR 15_160 |
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Page: 160↓
[Sheriff of Banff.
Circumstances held insufficient to entitle an appellant to be reponed against a decree pronounced upon failure to lodge prints in an appeal within 14 days after the process had been transmitted.
Observed ( per the Lord President) that if a respondent intends to give an appellant time, to print beyond what the Act allows, it should be so stated in writing.
This was an appeal from the Sheriff Court of Banff. In terms of the 2d sub-section of section 3 of the Act of Sederunt, 10th March 1870, the appellant was bound to have lodged the printed papers on 19th November. He failed to do so, and on 24th November presented a note to the Lord President asking to be reponed, in terms of the 3d sub-section of section 3 of the Act. It was stated that the delay had been caused in consequence of negotiations that had been proceeding between the parties' agents in the country for a settlement of the case. The only proposal made in writing was one by the appellant's agent, made on 20th October. The offer was therein declared to be open for three days only. Parties' agents had various meetings and conversations on the matter, but the only proposal made by the respondent's agents was, that this appeal, and another connected with it, should be abandoned, and a sum of £10 paid by the appellant in name of expenses. It was stated that the respondent's agent had agreed to allow the prints to be received after they were due, on the ground that the appellant's agent had difficulty in communicating with his client.
At advising—
Now, the question that we have to answer here is, —has cause been shown for the appellant's omission to perform this duty? The only cause alleged is this, that the parties' agents were wasting in useless verbal negotiations the time that should have been otherwise employed, thereby clearly violating the spirit of these regulations. And what were these negotiations? They were not really negotiations at all. The respondent had made a proposal that was not at all likely to be entertained, and it was for the purpose of communicating that proposal to his client that the agent lost all this time.
This is, in my opinion, a very bad case of failure to perform the duty required of him. In, I am inclined to say, as a general rule, that conversations and verbal negotiations are not to be taken as cause shown. If an agent intends to give a party time, let him state so distinctly in writing. Such an excuse as this we cannot entertain.
The Court accordingly refused to repone the appellant.
Counsel for Appellant— Mair. Agent— William Officer, S.S.C.
Counsel for Respondent— Guthrie. Agents— Gibson-Craig, Dalziel, & Brodies, W.S.
