Scottish Court of Session Decisions

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Cite as: [1866] ScotLR 1_163_1, [1866] SLR 1_163_1

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SCOTTISH_SLR_Court_of_Session

Page: 163↓

Court of Session Inner House Second Division.

1 SLR 163_1

Murphy

v.

M'keand.

Subject_1Process
Subject_2Sheriff Court Act
Subject_3Leading of Proof
Subject_4Appeal to Sheriff.
Facts:

(1) A pursuer of an action having been allowed a proof, the diet of which was twice adjourned, and having failed to attend the adjourned diet, held that, under section 10 of the Sheriff Court Act, his action fell to be dismissed; and (2) a Sheriff-Substitute having fixed a new diet of proof after the original diet had fallen, held that this was an allowance of proof and that the interlocutor might be appealed to the Sheriff under section 19 of the Sheriff Court Act.

Headnote:

This is an advocation from the Sheriff Court of Galloway. The advocator had presented in that Court a petition against the respondent and another, in which he applied for interdict of an intended sale of some bark under a poinding. He alleged that the poinding had been carried out unwarrantably, because the bark was not the property of the poinder's debtor, but his. Interim interdict was granted, and a minute of defence was lodged to the effect (1) that the petition was vague and indefinite, and (2) that the bark was not the property of the petitioner. A variety of procedure occurred thereafter in the process, which is detailed in the annexed opinion of the Lord Justice-Clerk. The question before the Court arose out of a renewal of a diet of proof which the Sheriff-Substitute granted to the petitioner after a first diet had fallen. This interlocutor of the Sheriff-Substitute was appealed to the Sheriff (Hector), who recalled it. He also dismissed the petition, and found the petitioner liable in expenses. To-day the Court adhered to the judgment of the Sheriff.

Judgment:

The Lord Justice-Clerk said—This is a small case, but it belongs to a class of cases of great importance, because there is no way in which more mischief can be done than by applications for interdict, and especially for interim interdict. The petitioner's application was presented on the 24th of January, interim interdict was granted of that date, and all I will say upon that point is that if the application had been made to me I would have refused it. The defender appeared, and stated his defence to be an objection to the vagueness of the petition, and a denial that the bark in question was the property of the petitioner. Upon that the Sheriff-Substitute allowed the petitioner a proof of his averments. I shall not say whether the proof ought to have been

Page: 164↓

allowed or not. But assuming that to have been well done, the Sheriff-Substitute further appointed a diet for taking the proof, and that was fixed for the 13th of February. His own judicial engagements prevented him taking the proof then, and accordingly there was an adjournment for two days in order that he might be present, and in the minute of adjournment the cause of it is properly set forth. On the 14th a motion was made for the petitioner's agent to adjourn the diet again, and the ground advanced for that motion was the absence of the petitioner's agent in Edinburgh. I doubt whether that was a sufficient cause. Any other agent would have been very glad to do that piece of work for him. But the Sheriff-Substitute took an indulgent view, and adjourned the diet till the 16th. And what is the result? That on the 16th there was no appearance for the petitioner. The effect of that, under the tenth section of the Sheriff Court Act, was that the allowance of proof fell to the ground; that the petitioner was no longer entitled to lead proof, or, in other words, had failed to avail himself of the allowance. On that failure, the Sheriff-Substitute should have dismissed the petition. But nine days were allowed to elapse, and nothing was heard of the petitioner or his agent, although the interim interdict was standing; and at last, on the 25th of February, the petitioner comes and asks a new diet of proof, and the Sheriff-Substitute grants it very indulgently, I think, but on grounds that were quite inadequate. I think that the Sheriff-Substitute should have come to an opposite conclusion. Then comes the question whether the respondent did not competently bring that before the Sheriff. I have no doubt he did. The original diet of proof had fallen; any interlocutor of the Sheriff-Substitute reviving the allowance of proof was just an allowance of proof, and under the 19th section of the statute that might be appealed to the Sheriff. I think that the Sheriff is right, and that we should adhere to his interlocutor.

The other judges concurred.

Counsel:

Counsel for the Advocator— Mr Mair. Agent— Mr W. Officer, S.S.C.

Counsel for the Respondent— Mr Pattison. Agent— Mr W. S. Stuart, S.S.C.
1866