Scottish Court of Session Decisions

Lord President—This is a very important point as regards practice in the Sheriff Court under the new Sheriff Court statute. The great object of the statute, and the mischief which it was intended to remedy, must not be left out of view. A portion of that mischief was the excessive delay which took place in allowing agents to consent to prorogations, and the object of the statute was to take away that power from agents, and to arm Sheriffs with the power to compel parties to proceed with causes when diets were fixed. For that purpose the 19th section of the statute provides—[ reads ut supra]. That is an exceedingly important provision, and I hope the Sheriffs are carrying it out strictly. It is exactly in the same spirit and with the same end in view that the 20th section enacts—[ reads ut supra]. The failure to appear at a diet of proof, or of debate, or at any other diet, is to be attended with the consequences that if both parties to the cause so fail, both are to go out of Court, and if one does, then judgment is to be given in favour of the other. This is imperative upon the Sheriff, unless sufficient reason is shewn to the contrary. That matter is, first, for the consideration of the Sheriff-Substitute, if it is before him that the diet is to take place. He must act because he is compelled by imperative words to do so, whatever his knowledge of the circumstances may be, if the party be absent. It was not intended that appeal under the 20th section should be prevented, and therefore the appeal was taken in this case. One can imagine circumstances where the absence of the party may be accounted for afterwards in such a way that it would be a strained construction of the section of the statute to which I have referred if he were not to be re-poned. It is quite right that there should be this right of appeal to the Sheriff in order that the defaulting party may have an opportunity of explaining the reason of his non-appearance.

In the present case the Sheriff-Substitute upon 2d May, with both parties before him, assigned “Wednesday the 23d May, at ten o'clock forenoon, as a diet for proof in the cause, at which diet allows the defender to examine himself as a witness, and the pursuer if duly cited for that diet.” On the 23d May the defender appeared. He had not cited the pursuer, and therefore it is evident he did not intend to examine him as a witness. He may not perhaps have chosen to lead any more evidence. But it makes no matter what course the defender intended to take; the pursuer was absent, and no one was there on his behalf. I do not see that the Sheriff-Substitute could have done anything else than he did. Then we have the Sheriff's view of the case in a very distinct note. He says—“Sec. 20 of the present Sheriff Court Act is very specific in its provisions, and if every excuse were to be taken as a ground for recalling interlocutors pronounced in accordance with that section, it may as well be held pro non scripto.” There is a great deal of force in that observation.

If there is anything which can possibly be represented as an innocent mistake, that might be a ground for getting rid of a Sheriff-Substitute's interlocutor. But there is great peril in what the Sheriff foresees. It is very easy to put forward what has the appearance of an innocent mistake. We know how explanations can be coloured so as to seem plausible and satisfactory. But it is negligence which these clauses are intended to prevent, and which is to be punished in the way they set forth. And it is that consideration which will justify the Sheriffs in dealing with cases in the way in which this has been dealt with.

It has been represented to us that the failure to attend here arose from the fact that the defender's procurator was confined by illness, and his clerk neglected to observe that the diet had been fixed for the 23d May. That is the same thing as if the procurator had himself been the guilty party. And does that not amount to negligence and fault ? It is what was intended to be provided against by the introduction of these stringent clauses into this Act of Parliament.

Even if a more plausible case than the present were made out, I should have great hesitation in going against the views held by the Sheriff. He has the procurators for both parties before him, and if it is necessary to clear up the facts of a case he may institute inquiries and satisfy himself in that way. So that unless a party came here with some very distinct allegations, susceptible of being averred specifically and proved directly, it would be unsafe, I think, to interfere with the interlocutor of the Sheriff. I do not say there might not be circumstances which would entitle this Court to interfere, but there are none of that kind in the present case.

Lord Deas, Lord Muer, and Lord Shand concurred.

The Court adhered.