Scottish Court of Session Decisions

In a petitory action at the instance of James Tainsh, liquidator of the firm of William Stewart & Company, timber merchants, Leith, against John Maule, builder, in the earlier stages of which the defender had appeared, decree was on the motion of the pursuer's counsel given against him by the Lord Ordinary ( Rutherford Clark) “in respect of no appearance by counsel or agent for the defender at repeated callings of the cause this day in the procedure roll.” The days allowed for reclaiming elapsed without any application being made by the defender to be reponed, and the decree was extracted, and a charge given thereon. Maule then presented a note of suspension of the charge, and on consignation the Lord Ordinary on the Bills ( Ormidale) sisted execution. He afterwards, after hearing counsel, refused the note, and added the following to his interlocutor:—

Note.—It cannot be doubted, and was not disputed, that the decree in question must be dealt with as one in foro, and that the reclaiming days were allowed to elapse without the complainer availing himself of the opportunity they afforded of getting reponed.

The decree being now extracted, and a charge having been given thereon for a balance of £32, 11s., the complainer has presented the present note of suspension, in which he refers to an action of reduction which he has also brought, and yesterday executed, against the respondent.

According to the complainer's statement the decree was allowed to pass against him through

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the negligence of his agent, and it is obvious, and was not disputed, that the merits of the case have never been considered and determined causa cognita.

In this state of matters, the Lord Ordinary would have been inclined to pass the note, especially as consignation has been made of the sums charged for, had it not been for the case of Lumsdaine v. Australian Company, December 18, 1834, 13 S. 215, which appears to him to be in all essential respects a precedent in point. Indeed, even supposing the complainer had timeously presented a reclaiming note in order to be reponed, it is by no means clear, looking to the authority of the case of Arthur v. Bell, June 16, 1866, 4 Macph. 841, that the Court would have reponed him. That a party's agent has neglected his duty may be a reason for subjecting that agent in the consequences, but it is not a ground upon which the rules of Court can be set aside or disregarded and the present note passed.

The matter was very amply discussed in the case of Lumsdaine, and there two bills of suspension were successively refused—the first by Lord Medwyn, and the second by Lord Corehouse; while ultimately the Court, upon considering minutes of debate, refused a reclaiming note, holding that although the case was one of hardship, yet, keeping in view that the party had not reclaimed within the days allowed for that purpose, and the decreet being extracted, it could not be suspended. In that case also it was remarked—as the Lord Ordinary now remarks—that the complainer might possibly obtain the redress he desires under the Act 48 Geo. III. c. 151, sec. 16, which provides a remedy for the case of a Lord Ordinary's interlocutor becoming final through inadvertence.”