Scottish Court of Session Decisions

This action (which was previously reported, ante, p. 16, Tuesday, 25th October 1881) was raised in the Sheriff Court of Banffshire by Major L. D. Gordon Duff of Drummuir against Andrew Steuart, Esq., of Auchlunkart, to have the defender ordained to join with the pursuer in clearing out certain ditches specified in the prayer of the petition. The action was founded on the terms of a decree-arbitral pronounced in 1846 in a submission to which the defender and the pursuer's predecessor in the estate of Drummuir were both parties.

Page: 344↓

The Court of Session having, as previously reported, by interlocutor of 20th October 1881, refused an appeal by the defender, under section 40 of the Judicature Act, as incompetent, the Sheriff-Substitute, by interlocutor of 16th November following, assigned the 5th of December as a new diet for parties to proceed with the proof allowed by the “interlocutor of 22d January last.” On 1st December Mr Steuart's local agent wrote to the agents of Major Duff as follows:—“My client instructs me not to lead any proof here, and I think it right, therefore, to apprise you of this. Ever since last enrolment I have been writing him for instructions regarding the proof, but only this morning have received a note containing above instructions. I presume it will be well to let the Sheriff know, and I have requested Mr Hossack to do so. You understand Mr Steuart's instructions to me are not to represent him at the proof.”

Major Duff's agents replied to this in the following terms:—“We are favoured with yours of date, and relying on your assurance that the pursuer is not to adduce any evidence at the proof we have countermanded the witnesses for whose attendance we had previously arranged.”

On 5th December the Sheriff-Substitute, “in respect the defender failed to appear either by himself or his agent at the diet of proof fixed for this day, and no reason was stated why no appearance was made, on the motion of the pursuer decerns against the defender for the sum of £5, 13s. 9d. sterling, and finds the defender liable to the pursuer in expenses of process.”

Against this interlocutor the defender appealed to the Court of Session.

The Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. cap. 70) provides, section 20—“Where in any defended action one of the parties fails to appear by himself or his agent at a diet of proof, diet of debate, or other diet in the cause, it shall be in the power of the Sheriff to proceed in his absence, and, unless a sufficient reason shall appear to the contrary, he shall, whether a motion to that effect is made or not, pronounce decree as libelled, or of absolvitor, as the case may require, with expenses.”…

The appellant argued—Under section 20 of the Sheriff Courts Act 1876 it was optional to the Sheriff to proceed with the cause or not. The defender was entitled to be reponed against this decree, in respect that the original allowance of proof having been limited to certain specific averments, he had no other mode of appealing for a wider allowance of proof than by allowing decree to pass by default, as he had done. He then stated, on the merits of the case, his objections to the validity of the said decree-arbitral.

The respondent replied—The terms of the Act were imperative, and the Sheriff had no alternative but to act as he did. The appellant could not reach the merits of the case unless finally reponed, and the Court would not so repone him without very special cause shown, and upon payment of expenses.

Authorities— Shirra v. Robertson, June 7,1873, 11 Macph. 660; M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085.

At advising—