Scottish Court of Session Decisions

At advising—

Lord President—I do not think that there is any doubt that we must sustain this objection. It is a great pity that the case was allowed to go on after the objection was taken in the Sheriff Court, for the whole difficulty might have been got rid of by service of the action anew if the pursuer had seen his own interest at that time. The rule as to the effect of not calling a summons for year and day is, I think, perfectly fixed both in this Court and in the Sheriff Court. It is not disputed that it is fixed in this Court, and has been so from an early period. The rule is that after a summons is served, if it is not called within year and day from the last diet of compearance, it is at an end. It has no longer any existence, and the pursuer must bring a new action. A doubt has been raised whether the same rule exists in the Sheriff Court. The presumption is that this rule being a rule of practice equally applicable to all Courts, it applies to the Sheriff Court as well as to the Supreme Court, and in looking at the authorities we find that it is laid down by them without any distinction being made simply as a general rule of practice. Then if we look at the books of writers on practice in the Sheriff Courts, we find it laid down without hesitation by all these authorities. No doubt new regulations are from time to time introduced in the Sheriff Courts which are applicable to the raising and conducting of actions, and among other things rules as to the calling of and appearance in actions have been introduced, but Mr M'Glashan states the rules thus (sec. 1561):—“Unless a summons was regularly executed within year and day of its date, and called within year and day of the date of compearance, the instance perished, and before the pursuer could again insist in his claim he must have brought a new action.” That states the rule independent of all statute law. He then goes on:—“This rule appears applicable to the new form of process, though the mode of calling and entering appearance has been varied.” In the next section (sec. 1562) we find what he means by the “new form of process,” for he says—“The summons having been called (now enrolled) the same consequences do not result from delay, for the calling being considered a judicial step there is a depending process, which, although allowed to fall asleep, might formerly at any time within the years of prescription have been awakened, but will now be regulated by the limitation of three and six months and revival within the first-mentioned period,” referring in that last sentence to the rules as to awakening which are contained in the Sheriff Court Act of 1853. The only other point that need be attended to is the argument which the respondent's counsel based on the language of the Sheriff Court Act of 1876, particularly of the 49th section of that Act. All that is necessary to be said upon that Act is, that it did not intend to introduce a new rule in this matter, and sec. 49 applies entirely to the mode of wakening causes, and the period at which they may be wakened, and not to the question when an action comes into existence and becomes a living process capable of being wakened. I can only say again that I regret that the case was allowed to go on after this objection was taken.

Lords Deas, Mure, and Shand concurred.

The Court recalled the whole interlocutors in the Court below, sustained the first plea-in-law for the defender (appellant), and dismissed the action.