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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Watson v. Burroughes & Watts, Ltd [1910] ScotLR 638 (27 May 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/47SLR0638.html Cite as: [1910] SLR 638, [1910] ScotLR 638 |
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Page: 638↓
(Single Bills.)
The 18th section of the Judicature Act 1825 enacts that a reclaimer shall at the same time as he prints and boxes the reclaiming note “give notice of his application for review by delivery of six copies of the note” to his opponent's agent.
Intimation and service of a reclaiming note were not made upon the agents for the respondents until after the reclaiming note had been moved in the Single Bills and the case sent to the roll.
Circumstances in which the Court (after consultation with the Second Division) allowed the reclaiming note to be reviewed on payment of two guineas of expenses.
Opinion per curiam that section 18 of the Judicature Act was directory merely and not imperative.
On 27th May 1909 Burroughes & Watts, Limited, London, brought an action against James Watson, builder, Uddingston, in which they concluded (first) for delivery of certain billiard tables and accessories delivered by them to the defender under a hire-purchase agreement, and (second) for £500 damages in respect of the defender's refusal to make delivery. A counter action at the instance of Watson against Burroughes & Watts, in which the pursuer sought repayment of the instalments paid by him on the ground that the tables were disconform to contract, was on 20th October 1909 conjoined with the action at the instance of Burroughes & Watts. Thereafter on 13th May 1910 the Lord Ordinary assoilzied the defenders in the action at Watson's instance, and in the action at the instance of Burroughes & Watts found the pursuers entitled to damages.
The defender Watson reclaimed.
On 27th May 1910 the respondents Burroughes & Watts presented a note to the Lord President craving his Lordship to move the Court to refuse the reclaiming note in respect that intimation and service thereof had not been made upon their agents until after the reclaiming note had been moved in the Single Bills and the case sent to the roll.
Argued for respondents— Esto that in the cases of Lothian v. Tod, March 3, 1829, 7 S. 525, and Campbell's Trustees v. Campbell, March 7, 1868, 6 Macph. 563, 5 S.L.R. 364, the Court refused to dismiss a reclaiming note, these were cases in which the opposite agents had got copies of the reclaiming note before the case was called. Here that was not so, and the reclaiming-note therefore fell to be refused— Bell v. Warden, July 2, 1830, 8 S. 1007.
Counsel for the reclaimer stated that the printer's failure to deliver copies of the reclaiming note, which was boxed on 23rd May and sent to the roll on 25th May, was due to the 24th of May being a public holiday in Edinburgh. In these circumstance's, and looking to the facts that the provisions of the statute were directory merely and not imperative, and that the respondents had suffered no prejudice, he submitted that the reclaiming note should be received. He cited Allan's Trustee v. Allan & Sons, October 23, 1891, 19 R. 15, 29 S.L.R. 28.
At advising, the opinion of the Court was delivered by
We are far from desiring to introduce any laxity in procedure; each case falls to be considered on its merits; and if it is a case where there is a possibility of prejudice to the respondent, the reclaimer may find that he is too late. We shall in this case allow the respondents two guineas of expenses, because we think that the failure to supply the copies was due to the fault of the reclaimer's agents.
The Court refused the prayer of the note ( i.e., the note for the respondents) but found them entitled to two guineas of expenses.
Counsel for Pursuers (Respondents) — Moncrieff. Agents — Campbell & Smith, S.S.C.
Counsel for Defender (Reclaimer)— J. A. Christie. Agent— E. Rolland M'Nab, S.S.C.
