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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> R.N. - Robert Mackay [1866] ScotLR 1_174 (21 February 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0174.html Cite as: [1866] SLR 1_174, [1866] ScotLR 1_174 |
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Page: 174↓
Held that the A.S. of 24th Dec. 1838, requiring intimation of a reclaiming note in a cessio to be attested by an officer, was complied with by production of an acknowledgment of intimation.
This was a reclaiming note against an interlocutor by the Sheriff of Caithness refusing a party the benefit of cessio. It was presented under section 8 of the Cessio Act, 6 and 7 William IV., cap. 56. That section provides that “a copy of the said note shall in all cases be delivered to the respondent or his known agent, which shall be held to be due service.” A copy of the note had been delivered to the respondent's agent, and there was an acknowledgment to this effect by the agent. But the clerk refused to receive the reclaiming note, because it is provided by section 13 of the Act of Sederunt of 24th December 1838 that “when the judgment of the Sheriff is brought under review of the Court of Session, in terms of the 8th section of the statute, the delivery of a copy of the reclaiming note as therein provided shall be attested by the execution of a macer, messenger-at-arms, or sheriff-officer, and one witness; and the clerks of Court are hereby prohibited from receiving the reclaiming note unless accompanied by such execution.”
The Court held the acknowledgment to be equivalent to execution, and ordered the note to the summar roll.
Counsel for Reclaimer— Mr Gebbie. Agents— Messrs Macgregor & Barclay, S,S.C.