Scottish Court of Session Decisions

This was a suspension brought by James Traill, residing at Tombeg, Monymusk, of a decree for £35 obtained against him on 19th November 1875, in an action in the Sheriff Court of Aberdeen and Kincardine, at the instance of John Andrew, residing at Cove, Aberdeen, laid on an agreement to give the respondent one-third of the proceeds for the season, and also one-third of the price of a horse sold by the complainer; and also of a further decree for expenses. The action was raised on 12th January 1874, and concluded, alternatively, for damages. Defences were lodged to the action, and a record made up; but after great delay (the action repeatedly falling asleep), and before proof had been led, decree by default was on 19th November 1875 pronounced in favour of the pursuer “in respect the defender has failed to appear either personally or by agent.” This interlocutor followed on one pronounced seven days previously, by which the Sheriff-Substitute, in respect the complainer's procurator had ceased to act for him, appointed the respondent to intimate to the complainer that he must appear on 19th November 1875 under certification. The complainer averred that on receiving this intimation he communicated with his agent, and understood that the latter would continue the agency and attend on 19th November 1875. The next intimation he received was a charge on the decrees under suspension. He further averred that these decrees were not well founded in law or in fact.

The complainer pleaded—“(7) The decrees sought to be suspended having been pronounced solely in respect of the complainer's non-appearance, and the said non-appearance having occurred through no fault on his part, and the said decrees being contrary to the justice of the case, the complainer is entitled to suspension.”

The Lord Ordinary ( Young) sustained the reasons of suspension simpliciter, without allowing proof of the complainer's averments, some of which were either denied or not admitted, and suspended the decrees and charge complained of.

The respondent reclaimed, and argued—(1) Assuming the complainer's case to be relevant, it had not been proved; (2) but his case was not relevant. In Mackenzie v. Smith, 23 D. 1201, it was held that decree by default against a defender for failure to lodge a revised paper is a decree in foro. Even in the case of a decree in absence it was competent to inquire into the whole circumstances whether or not the decree ought to be opened up; and in Brown v. Sinclair ( 2 Sh. and M'L. 143, and under remit, 15 Sh. 770) Lord Brougham strongly observed on the danger of enabling a man with a negligent attorney or a light purse to harass an adversary with a suit and then to withdraw and suffer judgment to pass against him, and then to escape from the effect of that judgment. Poverty and consequent inability to proceed has generally been pleaded against a decree by default. The complainer might have appealed in the case to the Sheriff or to the Court of Session. (3) Stringent conditions as to expenses should have attached to the suspension of a decree properly pronounced.— Morrison v. Walker, 9 Macph. 902; Cheyne v. M'Gungle, 22 D. 1490.

The Court unanimously adhered to the Lord Ordinary's interlocutor, but at the same time remitted

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to the Sheriff to repone the appellant (defender) on such conditions with regard to expenses as should seem just. Their Lordships observed strongly on the delay which had occurred in the case during the repeated prorogations granted on consent of agents, and expressed an opinion that it was the duty of the Sheriff to prevent this. The procedure was a trap for litigants; for, when the defender's agent ceased to act after the long delays which had occurred, advantage was taken of this opportunity to get decree by default.