Scottish Court of Session Decisions

The Australian Company, and Robert Brown, their manager, raised an action against Archibald Lumsdaine, merchant in Leith, for payment of £730, being a call of £10 per share on the stock held by him in the Australian Company. He lodged defences, which were followed by condescendence and answers, after which the pursuers took an order to revise. They lodged their revised condescendence, but, after repeated delays, Lumsdaine having failed to lodge his revised answers, the pursuers lodged a minute, stating, that the revised answers had not been lodged, and therefore craving decree in terms of the libel. On 14th May, after due notice to the defender's agent, and no appearance being made for Lumsdaine, the Lord Ordinary,“in respect the revised answers to this revised condescendence have not been lodged, as ordered by interlocutor of 11th March last, decerns against the defender in terms of the libel: Finds him liable in expenses; appoints an account thereof to be given in, and remits to the auditor to tax the same, and to report.” Pursuant to this interlocutor, the accounts were laid before the auditor for taxation. The agents of both parties attended the auditor, and, on 24th June, the Lord Ordinary (no appearance being made for the defender) pronounced an interlocutor, approving of the auditor's report, and allowing decree to go out in the name of the pursuer's agent.

The reclaiming days had in the meanwhile expired, on the supposition that these did not extend till extract, but only to twenty-one days; and the defender having, as he alleged, discovered for the first time on the rising of the session, the negligence on the part of his then agent, employed another to act for him. Under his agency, early in the autumn vacation, the revised answers, along with a note to be reponed, were presented to one of the principal clerks of Session, who, considering the note incompetent, refused to receive it. The process being got possession of, at the same time, by caption, the pursuers, and their agent, extracted the decree, and gave a charge for the principal sum, and the expenses of process. Lumsdaine presented a bill of suspension, offering to find caution for the principal sum, and to pay all previous expenses, and alleging that he had furnished his former agent with ample means and instructions duly to prepare the revised answers, and that it was through his culpable neglect that they had not been lodged. In proof of this, he produced a letter from that agent, dated 7th July, 1834, in these terms:—“I have committed a mistake in your case with the Australian Company, which I have been endeavouring to get rectified, by being too late in giving in a paper for you; and I am so much ashamed and grieved about it, that I cannot command nerve or fortitude to meet or see you, till I shall have used every means to place matters on the footing they were in before.” Lumsdaine also denied that he had given any authority to the agent to attend the taxation of the account, or that he knew any thing of it.

In these circumstances, Lumsdaine pleaded—

1. The decree was prematurely and irregularly pronounced. The judicature act (§ 12) fixed, that the penalty for failure to lodge either condescendence or answers was, that the Lord Ordinary should be empowered to hold the party's statements to be closed, upon the papers already lodged. The statute did not authorize decree to be pronounced in terms of the libel; and no such decree could in any case be pronounced without a previous interlocutor by the judge, foreclosing the parties from farther statement, hine inde. At least it could not be so pronounced, until the judge, after considering the state of the record and hearing parties thereon, was satisfied that the record could not be held closed on the papers already lodged, and that decree in terms of the libel Was the only apt interlocutor to be pronounced.

2. On the supposition that the decree was regularly pronounced, the note to bereponed ought to have been received by the clerk, which would have prevented extract, as it was competent to reclaim against a decree in absence, at any time before extract. It is true, that, by sec. 57 of the Act of Sederunt 11th July, 1828, it is provided, that, in the case of a decreet by default, the note to be reponed must be presented “within the reclaiming days;” but the subsequent clause, 72, places decrees in absence and decrees by default, in this respect, on the same footing, and allows the reponing note to be lodged any time before extract. The statute, 48 Geo. III., c. 151, did not apply to such a case as this. It had reference to the case where parties had been heard on the merits, and decree thereupon pronounced, and it had become final by mistake; but here parties were not heard at all, and the decree passed in absence, or by default.

3. It was clear, that the merits of the cause had never been judicially determined, and the decree ought to be considered equally open to review with a decree in absence. ¹ It is true, that the 72d section of the Act of Sederunt declares, that, if a party has once been reponed, all future proceedings shall be held as in foro. But there had been here no previous reponing, so the rule did not apply to this case. Besides, it was ultra vires of the Court to declare, by their Act of Sederunt, that such a decree should be in foro. Neither could acquiescence be alleged, for, as the agent had violated his duty, Lumsdaine could not be held foreclosed by his actings; nor could his attendance at taxation infer acquiescence by Lumsdaine in the decree.

The chargers answered,

1. The decree was regularly pronounced, according to the true meaning of the statute and Act of Sederunt, and the universal practice of the Court.

2. The note to be reponed was incompetent. It was expressly required, by sec. 57 of the Act of Sederunt, to present a note against a decree by default, “within the reclaiming days.” But the note was not presented within the reclaiming days, and the proper remedy would have been to apply, before extract, to the Court, with the leave of the Lord Ordinary, under 48 Geo. III. c. 151, sec, 16, to have the interlocutor recalled, as having become final through inadvertence or mistake.

3. The decree was not in absence, but in foro. ² The Act of Sederunt being passed in virtue of the powers given by the Judicature Act, and being duly reported to Parliament in conformity thereto, had all the force of a statutory provision while unrepealed. The attendance of the agent at taxation was an act of the strongest acquiescence