Tough v. Macdonald [1904] ScotLR 42_180 (24 November 1904)

Tough v. Macdonald [1904] ScotLR 42_180 (24 November 1904)

The refusal of the first reclaiming note as incompetent due to inadvertent lodging of the wrong record placed the defenders in the position of having presented no reclaiming note at all, thus entitling them to seek leave to reclaim under section 16 of the 1808 Act. Leave was granted as the error was due to inadvertence, and the statutory requirements were met.

Citation
[1904] ScotLR 42_180
Parties
Pursuer: Tough; Defender: Macdonald
Jurisdiction
Scotland
Judgment Date
24 November 1904
Procedural Posture
Civil Appeal / Application for Leave to Present Second Reclaiming Note After First Refused as Incompetent
Outcome
Leave to present a second reclaiming note granted; case appointed to roll on condition of reclaimers paying expenses up to date.
Legal Topics
Reclaiming Note, Inadvertence, Administration of Justice and Appeals Act 1808, Appeals Process
Civil Procedure Reclaiming Note Inadvertence Administration of Justice and Appeals Act 1808 Appeals Process

Case Brief

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Parties

Tough

Pursuer

Macdonald

Defender

Procedural Posture

Civil Appeal / Application for Leave to Present Second Reclaiming Note After First Refused as Incompetent

Legal Issues

  1. 1 Whether leave to present a second reclaiming note can be granted after the first was refused as incompetent due to inadvertent lodging of the wrong record
  2. 2 Whether the reclaiming days had expired from 'mistake or inadvertency' within the meaning of section 16 of the Administration of Justice and Appeals Act 1808

Ratio Decidendi

The refusal of the first reclaiming note as incompetent due to inadvertent lodging of the wrong record placed the defenders in the position of having presented no reclaiming note at all, thus entitling them to seek leave to reclaim under section 16 of the 1808 Act. Leave was granted as the error was due to inadvertence, and the statutory requirements were met.

Court Disposition

Leave to present a second reclaiming note granted; case appointed to roll on condition of reclaimers paying expenses up to date.

Orders

  • Leave to reclaim granted under section 16 of the 1808 Act
  • Case to be put to the roll