Scottish Court of Session Decisions

With respect to the merits of the appeal, I am of opinion that section 15 of the Sheriff-court Act puts an end to the possibility of Sheriff-court processes falling asleep under any circumstances. It substitutes a rule which was intended at least to be very stringent. I think that the Sheriff's construction of the proviso at the end of the section is not sound. The Sheriff construes it as saying that if a third party acquires the right under the action within the period of six months, he is not to be affected by the operation of the clause at all; therefore, in his case, the process must be liable to fall asleep, otherwise there might be no end to the delay. I think that what is meant by the proviso is, that the lapse of six months shall not affect the third party, but when once sisted as a party to the process, he is to be subject to the same regulations as any other party. If he personally allows three months to elapse, then he is liable to have the action eo ipso dismissed, and if he allows six months to elapse, he is out of Court altogether. There is just as little room in this case as in any other for the idea that falling asleep in consequence of no proceedings being taken for a year and day is applicable to a Sheriffcourt process.

But there is another question suggested in the reclaiming petition to the Sheriff, and revived today in argument. During the long interval between 2d August 1869 and 25th October 1871, the parties were going on before the judicial referee. The question is, Whether the proceedings before the judicial referee have the effect of keeping the process alive, just as proceedings before the Sheriff would have done? That depends on the construction of section 15 of the Sheriff-court Act. That section has no application if during the period of three months either of the parties has taken any proceeding in the cause. It would be far too strict a construction of these words to say that no proceeding in the cause can be taken except before the Sheriff. Proceedings before a judicial referee are proceedings in the cause, in the sense that they are taken under the authority of the Court, and with a view to the ultimate settlement of the cause by a judgment of the Sheriff.

Still further, Mr Scott maintains that there was an interruption of five months in the proceedings before the judicial referee, viz. between 14th May and 12th October 1870. He argued, that if these proceedings before the judicial referee, which are absolutely essential to prevent the process from going out of Court, are themselves interrupted for three months, the process needs to be revived, and as this was not done within six months, the process is now finally dismissed. There is a specialty in this case which enables the Court to get the better of this difficulty as well as of the other. The interlocutor of 14th May 1870, prorogating the defender's further proof till 12th October, proceeded on the consent of parties; so that the interruption was deliberately consented to by both parties. On the 12th October the parties, who had meanwhile come to the agreement that they could dispense with proof to a great extent, lodged a minute to that effect. After a great many subsequent appearances of the parties, between which there was no serious interruption, the referee issued his award. It is a strong proposal on the part of the pursuer, who consented beforehand to the interruption, and afterwards went on contesting the cause before the referee, and taking his chance of a decision in his favour, to turn round and say that no award can be given against him, and that the process must be held as dismissed. It is settled by the case of Mackintosh, Nov. 10, 1863, 2 Macph. 48; and of Steuart v. Grant, March 29, 1867, 5 Macph. 736; that after a process stands eo ipso dismissed in consequence of the lapse of three months, the parties may revive it of consent within the next three months, and, further, that if that consent is given before the expiry of the second three months, the process will be effectually revived although the interlocutor reviving the cause is not pronounced till after the expiry of the period. The proceedings which took place after 12th October 1870 before the judicial referee amount to consent on the part of both parties to revive the process. They were still within the time, and by their acts they signified their consent that the process should be treated as an existing process. No doubt there was no interlocutor of the Sheriff afterwards pronounced reviving the process. This struck me at first as a difficulty, looking to the terms of section 15. But this is rather too technical a view. Section 15 provides that it shall be competent to either of the parties to revive the said action in either of two ways, viz. on showing good cause to the satisfaction of the Sheriff why no procedure had taken place, or upon payment to the other party of the preceding expenses incurred in the cause. The statute distinctly expresses what is to be the effect of such revival. Such action shall be revived and proceeded with in ordinary form. Is it absolutely indispensable that the Sheriff shall pronounce an interlocutor holding the action revived? I have no doubt that this is the practice. It is the most distinct way of recording the revival. But suppose the party who wishes to revive the action pays to his opponent the whole previous expenses, would he be deprived of the benefit which he has thus purchased, by the fact that the Sheriff had not pronounced an interlocutor of revival? It has been distinctly held that the interlocutor of the Sheriff may be pronounced after the six months— Steuart v. Grant. If a party by paying expenses may thus at his own hand secure a revival of the cause, surely the opposite party may dispense with payment, and indicate by his proceedings that he does not require it. I am not prepared to say that in a case like the present an interlocutor of revival must be pronounced. I do not see why, if it were necessary, it could not still be done. We might recal the interlocutors both of the Sheriff and Sheriff-Substitute, and remit to the Sheriff-Substitute to pronounce an interlocutor of revival. But it is not necessary. The parties are tied down to a revival by their conduct and proceedings within the six months. We should recal the interlocutor of the Sheriff, and adhere to that of the SheriffSubstitute.