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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cameron v Chapman [1835] CA 13_1047 (7 July 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1047.html
Cite as: [1835] CA 13_1047
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SCOTTISH_Shaw_Court_of_Session
Page: 1047↓
v.
Subject_Expenses;—Decree in Absence—Title to Pursue.—
A party obtained decree in absence against a defender who resided abroad, and was edictally cited—the defender was not aware of the action until after decree was pronounced, and he raised a reduction of the decree—held, that he was not bound to pay the expenses incurred in the previous process before being allowed to insist in the reduction.
James Chapman of London, obtained decree in absence against Mrs Martha Cameron, residing near London, who had been edictally cited. She afterwards raised a reduction of the decree, against which Chapman pleaded, as his first dilatory defence, that the pursuer must pay the expenses of the previous action before being allowed to proceed with the reduction. Though living abroad, she had been regularly cited edictally, and it would impose hardship unjustly on the defender if he was not indemnified of his outlay in the previous action before going on with this.
The defender answered, that she had never been aware of the previous action until after decree was pronounced, and that she was not blameable in this ignorance, as she lived abroad, and had heard nothing of the edictal citation.
The pursuer attempted to bring home knowledge of the action, and borrowing of the summons, by an agent acting for Mrs Cameron; but he failed to prove this.
The Lord Ordinary “having heard parties’ procurators on the first dilatory defence, repelled that defence; and in respect that the defender intimated his intention to submit this judgment to the review of the Court, found him liable in expenses.” *
_________________ Footnote _________________
* “ Note.—The case of Smith, 9th March, 1826, does not apply to this one, for there the party was cited personally. Neither does that of Brackenridge, 30th May, 1834, for there, though the citation, like the present one, was edictal, the Court had no occasion to consider the effect of such a citation, in obligiug the party who was absent to pay the costs before he could proceed with a new action. He was reponed in the original action, and the conditions of being so were regulated by act of Sederunt.
Here the citation was edictal, and the party decerned against in absence is seeking redress in a process of reduction. The defender objects that she must first pay the coats of the former process. In order to sustain this objection, he must prove that the pursuer, or some one acting, or authorized to act, as her agent, was aware of the action in which the decree in absence was pronounced. But the Lord Ordinary does not think that he has done so, by the excerpts which are his only evidence, for the articles are entered in such a way that the interference of the agent may be ascribed to his acting for other persons as well as for the pursuer.”
Chapman reclaimed.
The Court unanimously refused the note, and awarded additional expenses against Chapman.
Solicitors: D. Manson, S.S.C.— W. Renny, W. S—Agents.