Scottish Court of Session Decisions

This was an action concluding for certain sums alleged to have been advanced as loans and for business accounts, and was raised on 12th August 1859 at the instance of Messrs Pearson & Jackson, against William Alison, seaman in Sinclair town, and Agnes Taylor or Alison, his mother. The defenders failed to enter appearance, and decree in absence was pronounced against them on 1st September 1859. No steps appear to have been taken on this decree against the defender William Alison. After his death an action was raised against his widow, Mrs Margaret Mitchell or Alison, to have her ordained, as representing her husband, to make payment of the sums decerned for in the decree in absence pronounced against her husband on 1st September 1859. That action stands dismissed in consequence of no procedure having been taken therein. In consequence, however, of the raising of that action against her, Mrs Margaret Mitchell or Alison lodged, on 19th January 1869, a note in the present action, craving to be reponed against the decree in absence pronounced against her husband on 1st September 1859. That note the pursuers, on 19th January 1869, held as intimated to them. On 19th January 1869 the Sheriff-Substitute pronounced an interlocutor, by which he reponed the said Mrs Margaret Mitchell or Alison against the decree in absence of 1st September 1859, and appointed the 26th of January 1869 for hearing parties' procurators in terms of the statute. The parties appear to have been heard on the 26th of January 1869, because of that date the Sheriff-Substitute pronounced an interlocutor, by which he sisted Mrs Margaret Mitchell or Alison as a defender in room and stead of the said William Alison, and appointed a condescendence and defences to be lodged. The record was closed, and parties appointed to be heard. After the parties were heard, the Sheriff-Substitute, on 21st June 1869, pronounced an interlocutor as to the proof to be allowed. This interlocutor was appealed to the Sheriff; and, upon the parties being heard before him, the case was remitted to the Sheriff Substitute to proceed with the proof, and dispose of the cause. On 6th January 1870, the Sheriff Substitute appointed the proof to be led on 14th February. On 4th February 1870, Mr Jackson, who alleges that he is now in right of the estate of Pearson & Jackson, raised a second action against Mrs Margaret Mitchell or Alison for implement of the decree in absence pronounced against her husband in this action on let September 1859.

The Sheriff ( Crichton) pronounced certain findings, allowing some of the pursuers' claims and repelling others, and in his note he says—“At the hearing before the Sheriff it was maintained that

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the interlocutor pronounced by the Sheriff Substitute on 19th January 1869, reponing Mrs Margaret Mitchell or Alison, was incompetent, and that all the proceedings which had taken place in this action subsequent to that date can receive no effect. It was contended that she could not be reponed against a decree which had not been pronounced against her, and that she had not at that date made up any title to her husband. If these objections had been stated at the time, a very grave question would have been raised; and the Sheriff is inclined to doubt whether it was competent for the Sheriff-Substitute to pronounce the interlocutor of 19th January 1869. But no objection was stated by the pursuers to that interlocutor being pronounced, nor was any objection stated to the interlocutor of 26th January sisting Mrs Margaret Mitchell or Alison as a party to this action being pronounced. The parties join issue, a record is made up, and a proof is led. No plea in law as to the competency of reponing or sisting Mrs Margaret Mitchell or Alison is stated on record. In these circumstances, the Sheriff has come to be of opinion that the pursuers are not now entitled to insist in the objections to the reponing and sisting. The objections should have been stated at the time, and they should have been disposed of or reserved by the Sheriff-Substitute in the interlocutor sisting Mrs Mitchell or Alison.“

The pursuers appealed.

Scott, for them, maintained that it was incompetent for the Sheriff to have reponed Mrs Alison when she had made up no title to her husband's estate. No consent will validate the reponing if it was not in the power of the Court to do it. No power was given by the A. S. 1839, § 24, and the Sheriff-court Act of 1853, § 2, to repone any one but the defender against whom the decree had been pronounced. Even one who properly represented the defender could not be reponed. A vitious intromitter could not be reponed.

Strachan, for respondent, was not heard in reply.