Scottish Court of Session Decisions

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Cite as: [1870] SLR 7_246, [1870] ScotLR 7_246

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SCOTTISH_SLR_Court_of_Session

Page: 246↓

Court of Session Inner House First Division.

Thursday, January 20 1870.

7 SLR 246

Gibson

v.

Smith

Subject_1Sheriff
Subject_2Defences
Subject_3Expenses
Subject_4Bill — Sheriff-Court Act 1853.
Facts:

The drawer of a bill sued the acceptor for payment, and was met by the defences of no jurisdiction, and that the bill was for the pursuer's accommodation. The Sheriff, after proof, repelled the defences, but allowed a defence to be lodged that the bill was a renewal one. Held that it was incompetent for him to do so under the Sheriff-Court Act of 1853. The Court, however, allowed the new defence to be lodged now on payment of all expenses in the Sheriff-Court, save those of the summons; and meanwhile reserved the settlement of the expenses in this Court.

Headnote:

John Gibson, grain merchant, Pettinain, sued James Douglas Smith, farmer, Carnwarth, for payment of £36, 18s. 5d., with interest from 31st March 1865, being the sum contained in a bill drawn by the pursuer upon, and accepted by, the defender on 28th February 1865 for £41, 9s. 8d., with discount thereon at 8s. 9d., but under deduction of £5 paid to account. The defender pleaded, as a preliminary defence, no jurisdiction; and, on the merits, that the bill was an accommodation bill for which he had received no value.

The record was closed on 10th November 1868, and a proof having been taken, the Sheriff-Substitute ( Dyce) repelled the defences. To this the Sheriff ( Glassford Bell), on 31st May 1869, adhered, but allowed the defender, on payment of all the pursuer's expenses, except those of the summons, to lodge the following new defence. “The bill sued for was paid and retired, partly by cash and partly by a renewal bill drawn by the pursuer upon and accepted by the defender, dated 1st April 1865, payable three months after date, for £36, 18s. 5d., which was paid by, and delivered up to the defender, and is produced in process. The defender is not liable for the amount concluded for, or any part thereof.” To this the pursuer objected, and his agent stated that he refused to sign this defence, except under reservation of his objections to it, as stated, and in terms of his minute in process; but he accepted payment of the expenses allowed.

On 17th August the Sheriff-Substitute pronounced the following interlocutor:—“Having heard parties’ procurators at the diet of adjustment, and having been satisfied that the proposed defence now minuted was perfectly relevant, allowed the same to be recorded; but as the pursuer's agent has declined to
Page: 247↓
sign the same, except under reservation of his objection stated in the Minute No. 20, although such objections he has manifestly waived by receiving payment of the expenses awarded by the Sheriff's interlocutor of 5th July last: Therefore holds the pursuer as confessed, and dismisses the action: Finds the defender entitled to expenses: Allows an account thereof to be given in, and remits the same when lodged, to the depute-clerk of court, as auditor, to tax and report, and decerns.” Against this the pursuer appealed, on the ground that mere refusal to authenticate the addition to the record did not justify the Sheriff in dismissing the action.

Hall for him.

Asher in answer.

At advising—

Judgment:

Lord President—This is an appeal against a final judgment in the Sheriff-court, and therefore is a perfectly competent appeal. The appellant asks to have it reversed, on the ground that it was incompetent. The whole cause is therefore before us. But the appellant now goes back upon the proceedings, and the first question raised before us is whether the Sheriff was justified in admitting the new defence after the record was closed? I have no difficulty in holding that his act was in-competent. The clause under which he is justified in opening up the record is section 16 of the Sheriff-Court Act of 1853. At the end of that clause it is provided that “it shall be competent for the Sheriff, where the cause is before him on appeal on any point, to open up the record ex proprio motu, if it shall appear to him not to have been properly made up.” The object of this enactment was to allow a remedy where there was a defect in the record, as it was possible, nay certain, from experience, from the unskillfulness with which Sheriff-Court records are prepared, that such defects would occur. But the enactment provides that the correction must be made ex proprio motu of the Sheriff, and this was certainly not done on the motion of the Sheriff, but at the request of the defender, and in spite of the opposition of the pursuer. Nor is the admission of this additional defence such a correction of the record as the statute contemplated. The object of the enactment was to allow matter to be stated more explicitly where it was ambiguous; but not to allow new defences to be set up.

But though the Act of 1853 does not give the Sheriff this power, we possess tins power under the Act of 1868; and I think we should exercise it on like conditions. And therefore I think we should allow this addition on payment by the defender of all the expenses in the Inferior Court subsequent to these allowed by the Sheriff. But I would propose to your Lordships to reserve the question of expenses in this Court, as I do not see that the pursuer is in any better condition here than he was in the Sheriff-Court. And if the defender eventually succeed in this action, it will be on the ground that the pursuer's claim is a dishonest one, and that therefore this action should not have been brought.

The other Judges concurred.

Counsel:

Agents for Pursuer— Maclachlan & Rodger, W.S.

Agents for Defender— Maconochie, Duncan & Hare, W.S.
1870