Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Edinburgh against an interlocutor of the Sheriff-Substitute and Sheriff giving decree by default against the appellant, who was the defender in the action, in respect that defences had not been lodged in time.

The action was one for aliment at the instance of a wife against her husband, and there were

Page: 285↓

allegations that the pursuer had been obliged to leave her husband in consequence of his great cruelty to her. It was raised on the 5th September, and decree was pronounced against the defender by the Sheriff-Substitute ( Hallard) “in respect of no defences,” on the 6th December. Defences were lodged the same day.

The Sheriff ( Davidson) on appeal adhered, adding the following note:—

“ Note.—The defender entered appearance to defend the action on the 14th of September. If for any good reason a prorogation of the statutory time for lodging defences was desired, application for such a prorogation should have been made to the Court within the time allowed for lodging defences. The Sheriff is not prepared at present to hold, and it is not necessary to determine the point here, that although it is not competent ‘ of consent of parties’ to prorogate the statutory enactment as to lodging defences, it is incompetent for the Sheriff on sufficient cause shown to grant a prorogation. It may not, however, be so held. In this instance no application was made. Nothing seems to have been done in the case between the 14th September and the 6th December, when the interlocutor appealed against was pronounced. That was an ex parte proceeding apparently. The interlocutor seems in the circumstances to have been inevitable; and supposing the Sheriff to have the power to recall it, he has heard no good reason for doing so.”

The defender appealed to the Court of Session. It was admitted that the delay had been caused by a proposal to compromise the case, which had been rejected by the defender after being approved by his agent. He had, however, in the meantime offered to take back his wife. The Sheriff ought therefore to have reponed in the circumstances. He had power to do so. The late Sheriff Court Act did not apply, and the procedure was regulated by the Act of 1853.

Argued for respondent—It was admitted that the Sheriff had power to repone in a case of decree in default of defences, and also that the Act of 1853 governed the procedure in regard to that. It was also admitted that the Sheriff had power to prorogate, and the Act of 1876, sec. 19, did not deprive him of that power—( Observed per cur. That is undoubted). But in this case this did not arise, for no prorogation was asked. The policy and reason of the Act of 1876 was to put a stop to the dilatoriness and remissness of agents, and the consequent delay in Sheriff Court procedure—Lord President in M' Gibbon v. Thomson, July 14, 1877, 4 R. 1085. In that case it was held that the Court had no doubt power to repone, but it was also held that the Sheriff was more likely to be conversant with the facts of the case than the Court, and that the Court would not lightly interfere with the Sheriff's decision. It was submitted that the present was a case exactly falling under the rule laid down in the case of M' Gibbon, and the Sheriff having found that there were no grounds for reponing, the appeal should be dismissed.

Authorities—Sheriff Court Act 1876 (39 and 40 Vict. c. 70); Sheriff Court Act 1853 (16 and 17 Vict. c. 80); Robb v. Eglin, May 18, 1867, 14 Scot. Law Rep. 473; Vickers & Son v. Nibloe, May 19, 1877, 4 R. 729; Robertson v. Barclay. November 27, 1877, 5 R. 257; M'Gibbon v. Thomson, supra.

At advising—