Scottish Court of Session Decisions

In January, 1836, the chargers, King's trustees, raised action before the Sheriff of Renfrew against the suspender Sharp for payment of the price of a quantity of molasses purchased in the island of Trinidad. Defences were given in which were followed by replies, and on 24th June, 1836, the Sheriff pronounced an order for duplies. This order Sharp failed to obtemper, and it was several times repeated. The term was twice circumduced, and the circumduction as often opened up of consent. At last, on the term being for the third time circumduced, Sharp neither lodging the paper required nor paying the previous expenses, the Sheriff, on 24th November, 1837, held him as confessed, and decerned against him with expenses.

Thereafter King's trustees gave a charge upon this decree, of which Sharp brought a suspension, alleging various causes for the delay which had occurred, and stating, as a reason of suspension, that the decree was pronounced in absence, at least without a record having been made up and the merits of the cause considered. The bill was presented without caution or consignation, and concluded for suspension, or to have the cause remitted to the Sheriff to repone the complainer, in terms of 1 and 2 Geo. IV. c. 38, § 1.

Answers having been lodged, the Lord Ordinary pronounced the following interlocutor, adding the note subjoined: ^*—“In respect that the decree charged on was pronounced after the most unusual indulgences in point of time were given to the complainer in the inferior court, while the present bill is offered without caution, and that it would be of bad example to permit a party to renew a litigation, unless he either consign the sum in dispute or find caution judicatum solvi, neither of which securities the complainer offers the charger in the present case—Refuses the bill; finds the complainer liable in expenses.”

_________________ Footnote _________________

* “This is one of the cases in which the conduct of the complainer, in successfully protracting litigation for months and years, brings reproach on the law and its forms. The decree charged on was pronounced in consequence of the complainer not lodging a duply necessary to complete the record. That duply was first ordered on 24th June, 1836. Innumerable repetitions of the order were given; the term was thrice circumduced; and at length, the decree was pronounced in November, 1837, at the distance of sixteen months from the date of the original order.

“The complainer attempts to excuse himself by saying that he tried to get information from Trinidad; but during the time allowed, he might have heard from China before the decree was ultimately pronounced in the inferior court.

“The Lord Ordinary cannot think that this is a case in which the defender ought to be permitted to litigate longer, without caution or consignation, at least he cannot take on himself the. responsibility of allowing the most useful regulations for the despatch of business to be utterly set at nought, nor will he put it in the defender's power to renew his course of litigation, merely on paying a few pounds of expenses,

“If the complainer reclaims, it will be in the power of the Court to direct the complainer to be reponed, on such terms as to caution, consignation, or expenses, as may appear to their Lordships appropriate to the case.

“Besides, if the suspender has a just defence on the merits, he has redress by reduction and repetition, even if unsuccessful in his present application.”

Sharp reclaimed, but