Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Renfrew and Bute by Patrick M'Carthy, Glasgow, against John Emery, contractor, Glasgow, concluding for payment of £100 as damages for injuries sustained by the pursuer.

The Sheriff-Substitute of Paisley ( Cowan), on 26th December 1896, closed the record and sent the case to the roll for debate on 12th January 1897. On that date he sent the case to the roll of the next Court, and on 19th January, on the defender's motion, because of the absence of the pursuer's agent, again continued the case to the next Court. On 26th January the Sheriff pronounced the following interlocutor:—“In the absence of the pursuer, assoilzies the defender from the conclusions of the petition.”

The pursuer appealed to the Court of Session.

Argued for the pursuer—The appeal was competent. A judgment by default in the Sheriff Court was appealable — Mackay's Practice, ii. 448; Hamilton v. Hamilton, Nov. 13, 1824, 3 S. 199; Leslie v. Edie, March 1, 1828, 6 S. 674. It was entirely owing to a misunderstanding that the pursuer's agent had failed to appear on the day on which absolvitor was pronounced. The more usual course, no doubt, would be to remit the case to the Sheriff, but it would be better if it were kept in the Court of Session.

Argued for the defender—The appeal was incompetent. The pursuer's agent had full notice of the day fixed for the debate, there had been two continuations, and no adequate excuse had been given for his failure to appear. It was only in very special and exceptional circumstances that a party would be reponed against a decree by default, and no such circumstances were alleged here— Morrison v. Smith, Oct. 18, 1876, 4 R. 9.