Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0473_1.html
Cite as: [1877] SLR 14_473_1, [1877] ScotLR 14_473_1

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SCOTTISH_SLR_Court_of_Session

Page: 473↓

Court of Session Inner House Second Division.

[Sheriff of Dumfries and Galloway.

Saturday, May 19.

14 SLR 473_1

Nibloe

v.

Vickers and Mandatory.

Subject_1Process
Subject_2Sheriff Court
Subject_3Decree by Default
Subject_4Reponing — Expenses.
Facts:

An action of accounting was brought in the Sheriff Court in 1875, and after protracted delays on both sides the defender in 1877 failed under certification to attend adjourned diets for examination of havers. The Sheriff
Page: 474↓
pronounced decree by default, but on appeal the Court, while of opinion that the judgment of the Sheriff was properly pronounced, reponed the defender, subject to payment of expenses incurred since the first delay on his part, there having been also great delay on the pursuers' part.

Headnote:

This was an appeal in an action brought by Vickers & Sons, manure manufacturers, Manchester, and Cowper, farmer, Polcardoch, their mandatory, against Nibloe, cabinetmaker and postmaster, Stranraer, formerly agent there for Vickers & Sons, for count and reckoning of his intromissions from 23d January 1868 to 30th June 1873, and failing production by the defender of the necessary vouchers and documents, for decree for £90, being partly the value of stock unaccounted for and partly cash unaccounted for. The defence stated was that the defender had fully accounted, and that he was not responsible for deterioration of goods sent by the pursuers on sale. The action was raised on 4th November 1875, and on 20th January 1876 the Sheriff-Substitute prorogated the period for lodging defences for six days. This was twice renewed in February in respect of the illness of the defender's agent. On 6th July 1876 the action was, on pursuers' motion, revived, and on 13th July both parties obtained diligences to recover documents. On 23d November 1876 a diet for examination of havers was adjourned in respect of the family affliction of the defender's agent, and the defender having failed to appear under certification at two successive diets, decree by default for £90 with expenses was ultimately pronounced on 18th January 1877. On appeal the Sheriff-Principal adhered, describing the case as one of gross professional delays and continued disregard of the orders of Court.

The defender appealed to the Court of Session, and argued—There had been delay on both sides, but latterly the defender had lost the services of his agent, and he had now employed another agent. The papers called for were in the possession of the defender's agent.

The respondent (pursuer) referred to case of Matheson v. Munro, February 7, 1877, Journal of Jurisprudence, xxi., p. 150.

At advising—

Judgment:

Lord Justice-Clerk—This is an example of the grossest professional delay. The action was raised in November 1875, and at the end of a year the parties had scarcely reached the first stage of inquiry. Then at two diets, of which he had notice, the defender failed to appear, writing letters instead, which he ought not to have done. The Sheriffs therefore did quite right in pronouncing decree by default. But this is an action for an unliquidated trade balance, and as there has been great delay on the pursuers' side also, I think it better to recall the judgments below, and to repone the defender on payment of all expenses subsequent to 20th January 1876, when the delay on his part first began.

Lord Ormidale.—I hope this case will be reported, to show that this Court will not tolerate such delays as have occurred here. I am afraid that even the course suggested by your Lordship may tend to shake the authority of the Sheriffs in dealing with practice of this kind.

Lord Gifford—It ought to be distinctly understood that we do not recall the Sheriff's judgments as not properly pronounced in the circumstances. These judgments were quite right, but we repone the defender, subject to a heavy penalty. He may possibly have some relief against the agent who misconducted the defence.

The Court reponed the appellant, on payment of all expenses subsequent to 20th January 1876.

Counsel:

Counsel for Appellant— J. D. Dickson. Agent— Charles Todd, S.S.C.

Counsel for Respondent— M'Laren. Agents— J. & J. Milligan, W.S.
1877

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