Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0592.html
Cite as: [1871] ScotLR 8_592, [1871] SLR 8_592

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SCOTTISH_SLR_Court_of_Session

Page: 592↓

Court of Session Inner House Second Division.

Saturday, June 24. 1871.

8 SLR 592

Morrison

v.

Walker.

Subject_1Process
Subject_2Reponing
Subject_3Appeal
Subject_4Sheriff — Sheriff-court Act 1853, § 16.
Facts:

After a proof had been led in the Sheriff-court, the Sheriff-Substitute appointed the case to be enrolled in the Debate Roll. No appearance was made for the pursuer at the debate, and on the defender's motion the Sheriff-Substitute held the pursuer as confessed, and assoilzied the defender. The pursuer failed to apply to the Sheriff to be reponed within seven days, under the 16th section of the Act, and appealed to the Court of Session. The Court reponed him on payment of £10, 10s. of expenses, but expressed dissatisfaction with the irregularity of the procedure, and indicated opinions that it was not contemplated by the Sheriff-court Act that cases should be brought up for review from the Inferior Court causa non cognita.

Headnote:

This was an appeal from the Sheriff-court of Lanark.

The Sheriff-Substitute ( Murray) pronounced the following interlocutors:—

“ Glasgow, 25 th March 1871.—On defender's craving, no appearance having been made for the pursuer at the debate yesterday—Holds pursuer confessed as not insisting in this action, and assoilzies the defender from the conclusions thereof: Finds the pursuer liable in expenses; allows, &c.”

Glasgow, 30 th May 1871.—Approves of the auditor's report on the defender's account of expenses, and decerns against the pursuer for the taxed amount thereof.”

The pursuer appealed.

Pattison for him.

W. A. Brown for respondent.

Judgment:

Lord Justice-Clerk—I think the proper course is to repone the appellant on condition of payment of £10, 10s. of expenses. I have considerable difficulty on the competency of doing so in the present state of the case, but as there appears to be no distinct rule of process, and no statutory provision against our reponing a party who has not taken the usual course of going to the Sheriff, I think that we ought to grant his application. I do not see any objection to our hearing the parties on the proof, and so acting as a court of original jurisdiction, after the proof has been led and the case is ready for judgment. To send the case back to the Sheriff-court would be putting a penalty on the respondent.

Lord Neaves doubted whether the proper course would not be to remit the case to the Sheriff-court on condition of the appellant paying expenses,

Page: 593↓

and hoped that this case would not be a precedent.

Lord Cowan and Lord Benholme concurred with the Lord Justice-Clerk; and the Court reponed the appellant on condition of paying £10,10s. of expenses, and delayed the case for a week till the expenses should be paid.

When the case was again called on the roll the expenses had not been paid, and the Court dismissed the action.

Solicitors: Agent for the Appellant— J. Y. Pullar, S.S.C.

Agents for the Respondent— J. & R. D. Ross, W.S.

1871

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