M'MILLAN v CAMPBELL (Court of Session)

2dly, Supposing that this intimation in open court was insufficient, the service of the copy of the appeal, which was lodged within ten days thereafter, was sufficiently vouched by the attestation of the appellant's agent; as the statute does not enjoin, or indeed authorise, any service by a messenger as an actus legitimus, but merely requires that a copy shall be served upon, that is, delivered, to the opposite party or his agent; and the fact of such delivery may be proved in any manner, and is not denied in the present case.

The respondent answered —1st, That there was no proper intimation of appeal in open court; because there was no written minute or entry in the process of such appeal by the pursuer or his procurator, and because no caution had been found, or offered, at that time for the expenses, which the statute requires to be done at the time when the appeal is taken.

2dly, That the service of a copy of the appeal required by the statute was an actus legitimus, which could only be performed by a messenger or officer of court; or at least that it ought to be done before witnesses mentioned in the attestation of service; and that a mere certificate by a single interested person, like the agent for the appellant, could bear no faith.

This case relates to an appeal attempted to be taken from a judgment of the Sheriff of Renfrew to the Circuit Court at Glasgow.

The act 20 Geo. II. c. 43, allows such appeals to be taken, 1 st , In open court, at the time of pronouncing decreet by the inferior judge; or,