Scottish Court of Session Decisions

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Cite as: [1867] ScotLR 5_47, [1867] SLR 5_47

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Staturday, November 23. 1867.

5 SLR 47

Stephen

v.

Anderson and Another.

Subject_1Suspension
Subject_2Caution
Subject_3Decree for Expenses
Subject_4Sheriff — court Act.
Facts:

A suspension of a Sheriff-court decree for expenses, on the ground of incompetency in the procedure, refused, the note being presented without caution, and the grounds of suspension not being prima facie sufficient to move the Court in the exercise of its discretion to pass the note.

Headnote:

This was a note of suspension and interdict, presented by James Stephen, shipmaster, Fraserburgh, against Robert Anderson, writer, and A. B. Henderson, shoemaker, in Fraserburgh, craving suspension of a decree for expenses obtained by the respondents against the complainer in the Sheriff-court of Aberdeenshire, and also craving interdict against a poinding and sale of his furniture and other effects. The note was presented without caution.

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It appeared that on 2d October 1866 the complainer presented a petition in the Sheriff-court of Aberdeenshire against the respondents, craving delivery of certain documents. On 10th October a minute of defence was lodged by the respondents' agent. Thereupon the Sheriff, holding that the petition and minute sufficiently met each other, closed the record, the pursuer's agent objecting to sign the minute of defence on the ground that condescendence and defences were necessary. On 6th November the Sheriff allowed both parties a proof of their averments. No progress in the action was made, however, for some time; but on 14th February 1867 a joint minute was lodged for the parties, consenting that the diet of proof should be prorogated to the 2d of March. Thereafter a proof was led, and various procedure took place. The complainer, after the proof for the respondents was concluded, moved for a conjunct proof, but the Sheriff refused the motion. On 2d May the Sheriff sustained the defences, and found the complainer liable in expenses.

The grounds upon which the complainer now sought to suspend the decree for expenses were, that no proceedings having been taken by either party in the action for three consecutive months from 6th November 1866, the action stood, eo ipso, dismissed under the statute 16 and 17 Vict., c. 80, sec. 15; and no revival of the action having taken place in the manner provided by the statute during the subsequent period of three months, such dismissal became final; that the mode in which the record was made up, and the refusal to the complainer of a conjunct probation, were wrongous and illegal. He also objected that no notice was given him when the account of expenses came before the auditor for taxation.

The Lord Ordinary ( Barcaple) refused the suspension, recalled the interdict which had been granted ad interim, and found the complainer liable in expenses.

The complainer reclaimed.

The Sheriff-Court Act, 16 and 17 Vict., c. 80. enacts, sec 3, “When the defender intends to state a defence he shall enter appearance by lodging with the Sheriff-Clerk, at latest on the day of compearance, a notice in the form of Schedule (C.) annexed to this Act; and on the first Court-day thereafter, or on any other Court-day to which the diet may be adjourned, not being later than eight days thereafter, the Sheriff shall hear the parties in explanation of the grounds of action, and the nature of the defence to be stated thereto, and if satisfied that no farther written pleadings are necessary, he shall cause a minute in the form of the Schedule (D.) annexed to this Act, to be written on the summons, setting forth concisely the ground of defence: which minute shall be subscribed by the parties or their procurators, and the Sheriff shall thereupon close the record by writing under the said minute ‘Record closed,’ and signing and dating the same; but if the Sheriff shall be satisfied that the record cannot properly be made up without condescendence and defence, he shall pronounce an order for the same,” &c. Section 15 provides, that where neither party in action takes any steps for three consecutive months the action shall, eo ipso, stand dismissed, without prejudice to either of the parties within three months after the expiration of such first period of three months, to revive the action on showing good cause, to the satisfaction of the Sheriff, why no procedure has taken place, or &c.

D. Mackenzie for reclaimer.

Campbell v. Blackwood, 7th Nov. 1862, 1 Macph., 1; Mackintosh v. Mackintosh, 10th Nov. 1864, 2 Macph., 48; Stewart v. Grant. 29th March 1867, 5 Macph., 737, and M'Glashan's Sh. C. Pr. 199, were cited.

Clark and W. M. Thomson for respondent, were not called on.

Judgment:

Lord President.—The important question to be kept in mind in dealing with all these points is that this is a suspension of a decree for expenses, presented without caution. Now that involves a question of discretion, and it is not necessary in dealing with this note to decide all the points raised by the complainer. The question is, Whether he has presented such a case as, in our discretion, he ought to be allowed to try on a passed note without caution? I think he has not. He has not brought the merits under review, but has acquiesced in the finding on the merits, and all he seeks is to suspend this decree for expenses, and to enable him to resist that decree against him in a cause in which he is, by his own admission, wrong, he raises these nice points about the competency of the proceedings. And the first point he takes up is that the cause had come to an end under the provisions of the 15th section of the Sheriff-court Act. This, no doubt, is a formidable objection if well founded, and if it could have been shown that this cause actually stood dismissed, and could not be, or was not revived, I should then have been disposed to pass the note to enable the complainer to get redress against a decree which must in that case have been pronounced by a judge having no jurisdiction. But this objection is unfounded in itself. The 15th section of the Sheriff-court Act provides, that when in any cause neither of the parties thereto shall, during the period of three consecutive months, have taken any proceeding therein, the action shall, at the expiration of that period, eo ipso, stand dismissed. But then that is subject to the qualification that it shall be competent to either party within three months after the expiration of such first period of three months, to revive the action on showing good cause to the Sheriff why no procedure had taken place, or upon payment to the other party of the preceding expenses. Now, on a strict construction of the Act, no procedure ought to be permitted, unless strictly in accordance with the forms pointed out in the clause of the Act, but it is impossible to adopt a strict construction after the cases already decided. It was held by the Court in the case of Mackintosh that consent of the parties to a revival of the cause was of itself a sufficient reason for the Sheriff reviving proceedings; and in the case of Stewart it was farther held that when the parties consented by a joint-minute it was not necessary for the Sheriff to pronounce an interlocutor, but the cause stood revived by the joint-minute. In this case it is impossible for one of two parties to a joint-minute, such as here, to attempt to go back on proceedings taken with his consent under that joint-minute, and to say that, notwithstanding such consent, he is entitled to have the whole proceedings regarded as null and void. That being so disposed of, I confess I am not much troubled by the other points. It may be of importance in practice in Sheriff-courts whether a Sheriff is entitled to close a record unless the minute be signed by both parties or their agents. It appears from a book of practice that the Sheriff usually takes care to get the consent of both parties before closing the record, and if he does not get it he

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orders a condescendence. But I am not prepared to say that there is anything in the 3d section to prevent closing the record on summons and defences if a party improperly refused to sign the minute. I give no opinion on that, but I am clear that, in our discretion, that is not a good ground for sustaining the present suspension. So with the questions as to conjunct probation, and whether sufficient notice was given previous to the auditor taxing the account of expenses. These are matters which the Court ought, in a case like this, to disregard in a note of suspension presented without caution.

Lord Curriehill—This is entirely a question of discretion. It is a suspension of a decree for expenses. The merits are not here at all. The note is presented without caution, and it is always a matter of discretion in the Bill Chamber whether suspension of final decree shall be given without caution. I am clear in the whole circumstances that we ought not to pass this note without caution. Where we do so, that does not prevent a note of suspension being presented on caution. The complainer may also bring the merits before the Court on finding caution, although we refuse the present note; and we may be called on afterwards to consider this question on its merits; and I am not inclined to prejudge any of these questions.

Lord Deas—In such cases the Court always look to the prima facie grounds which are pleaded, and, if they are strong, the note may be passed. But any opinion on this stage is only an opinion of that kind—that, prima facie, there is not such a strong case stated as to pass the note. Taking it in that view, I agree as to the main ground of suspension, viz., that the acting had ceased to exist. If there had been good prima facie grounds for that objection the note might have been passed; but I think there were no good prima facie grounds, but all the other way. What took place here was within the six months, and the only question is. Was that a revival? As to the second point—that about closing the record without consent of parties—I am not at present inclined to go along with the complainer. I don't think there is any such probability that the Sheriff will be found to be wrong, or that that is a point so clear in favour of the suspender that we should pass the note without caution. At present I am inclined to think that the Sheriff acted within his power. As to anything touching on the merits, the suspension is incompetent certainly when presented without caution.

Lord Ardmillan concurred.

Adhere.

Solicitors: Agent for Complainer— James Bell, S.S.C.

Agent for Respondents— Alexander Morison, S.S.C.

1867