Scottish Court of Session Decisions

On 30th November 1874 Forrest raised an action of damages for slander and defamation against Dunlop. Dunlop entered appearance and lodged defences, but the pursuer failed to deliver two printer's proofs of the record in terms of the Court of Session Act, 1868, § 26, within the days therein specified, and the defender, in terms of the said section, on 8th January moved the Lord Ordinary (Young) to grant decree of absolvitor by default. In respect of said failure, and that no appearance was made by the pursuer to explain his failure, the Lord Ordinary assoilzied the defender from the conclusions of the action and decerned, and found the defender entitled to expenses. The pursuer did not reclaim. The decree was extracted, and payment of the taxed amount of expenses was enforced.

Before the expiry of the reclaiming days, Forrest raised a second action against Dunlop, precisely in terms of the former one. The defender, inter alia, pleaded res judicata.

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 20 th March 1875.—The Lord Ordinary having heard the counsel for the parties, and considered the closed record and whole process, sustains the defender's plea of res judicata; assoilzies the defender from the action; and finds the pursuer liable in expenses: Appoints an account thereof to be lodged, and, when lodged, remits the same to the Auditor of Court to tax and to report.

Note.—The defences raise an important question as to the effect of the provision in section 26 of the Court of Session Act, 1868, to the effect that if the pursuer of an action shall fail within eight days from the lodging of the defences to deliver to the defender's agent two printer's proofs of the pleadings which are to form the record, ‘the defender may enrol the cause, and move for decree of absolvitor by default, which decree the Lord Ordinary shall grant, unless the pursuer shall show good cause to the contrary.’ In this case the pursuer, on 30th November 1874, raised an action of damages against the defender for slander and defamation, which was called before Lord Young. The defender entered appearance and lodged defences; and on 8th January Lord Young, in respect of the failure of the pursuer to deliver two printer's proofs of the record, in terms of the Court of Session Act, 1868, and no appearance being then made for the pursuer, assoilzied the defender from the conclusions of the action and decerned, and found the defender entitled to expenses. The pursuer acquiesced in the interlocutor, and the decree of absolvitor has now been extracted, and the pursuer has been charged to pay the taxed amount of expenses.

The present action has been raised by the pursuer precisely in terms of the former action, and the defender pleads that the final interlocutor of absolvitor by default, pronounced by Lord Young in the former action, is res judicata. I am of opinion that this plea is well founded. I think that the pursuer must be held as confessed in the former action, and that he cannot now insist in the claim of damages from which the defender was assoilzied in that action. The pursner not only did not appear to show cause why that decree of absolvitor should not be pronounced, but he did not avail himself of the remedy which was open to him, of applying to the Inner House by a reclaiming note to be reponed. To allow the pursuer now to insist in a new action, in the same terms as the former action, would not only be to ignore the provisions of the Judicature Act, by which a pursuer may abandon an action, reserving right to bring a new action, but would be a violation of the policy and of the letter of the Court of Session Act 1868. A decree by default is a decree in foro, and the party against whom such a decree is pronounced can be reponed only by adopting the well-known and authorised procedure of an application to the Inner House by a reclaiming note, within twenty-one days, or possibly before extract. I know of no case in which a decree by default has even been allowed to be set aside by the institution of a new action. The defender must therefore be assoilzied, with expenses.”

At advising—