Scottish Court of Session Decisions

This was an action of accounting at the instance of J. B. W. Lee, S.S.C., Edin burgh, directed against Messrs Duncan Smith & Maclaren, S.S.C., Edinburgh. The facts in the case (so far as necessary for the present report) are fully stated in the opinion of the Lord Ordinary.

The defenders pleaded, inter alia, (1) No process and no issue.

On 26th February 1897 the Lord Ordinary repelled the defenders' first plea-in-law and continued the cause.

Opinion.—“The defenders have maintained that this action should be dismissed de piano because of the pursuer's delay in calling the summons and because of the defenders' protestation in the minute-book. The summons was served on 19th October, and the inducice expired on Monday the 26th. The 22nd section of the Court of Session Act authorises a defender to proceed by protestation after the expiry of two sederunt days thereafter, and accordingly the defenders had their protestation entered in the minute-book on 30th October. It is required by practice that the protestation shall remain in the minute-book for nine free days before the defender can take

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any further action. These days elapsed on Tuesday, 10th November, and on that day the protestation was ‘given out to be extracted.’ But on Monday, 9th November, the summons was lodged with the clerk to the process, and on Tuesday, the 10th, appeared in the calling-list; and the defenders maintain that that was an incompetent step, and that the process had fallen. The defenders averred that the warrant to extract the protestation was granted before the summons was called. But that is not admitted, and the defenders urge that it is not material.

It will be observed that the defenders took out protestation and obtained a warrant for extract on the earliest possible dates. They allowed the pursuer no delay which they could avoid. The plea is extremely technical, and required to be very clearly established. The action may be well founded on the merits, or it may be plainly irrelevant. I have not given that any consideration, but of course I am reluctant to throw it out on a mere technicality; and the defenders have not satisfied me that I am bound to do so.

There is considerable obscurity about the law and practice about protestations. They depend in part on custom and in part on statute.

The defenders referred to the 30th section of the Act of Sederunt, 11th July 1828. It is not of much consequence. It of course assumes a settled practice and requires the keeper of the minute-book to score (as it is called) a protestation ‘on production to him (before a warrant is issued for extract of the protestation) of a certificate from a depute-clerk of court or his assistant that a summons has been duly lodged with him for calling.’

The 23rd section of the Court of Session Act 1850 is of more importance. It provides that where protestation is put up in the minute-book of the Court of Session ‘and warrant is issued for extract thereof’ … ‘such extract shall contain a decerniture for £3, 3s. of protestation money as expenses: Provided always that a pursuer may be reponed against a protestation for not calling at any time not later than ten days after the same has been given out for extract, whether extract shall have been issued or not, by lodging with the clerk, in order to calling, his summons’ along with the receipt of the agent of the defender for the sum of £3, 3s.

Section 22 of the Court of Session Act 1868 does little but sanction and continue the former procedure.

These are all the statutory regulations which were referred to, and it is to be observed that none of them state what is to be the effect of putting up protestation, or state, unless inferentially, that the right to call the summons shall be lost by a warrant to extract or by an extract. There may be some earlier Act of Sederunt regulating this matter, but it was not referred to. So far as I know the penalty which I am called on to enforce is not provided by statute.

Looking back to the origin of this procedure I find that it is of very old standing indeed. It is a remedy against the annoyance and inconvenience to a defender of being liable to be called at any time within a year and day to answer in Court to an action which has been served on him, and, as may be supposed, such a remedy was allowed from very early times. It is said by Erskine (iv. 1, 7) to have been established by custom. It is treated of expressly in Balfour's Practices, p. 296, c. 10 and 13, and at some length by Lord Stair (iv. 1–6), who mentions two remedies which were open to a defender—he might appear at the second diet and protest that he should not be called on to appear again unless he was cited of new; but his more complete remedy was to bring a counter action calling on the pursuer to proceed under certification that if he did not he should not be heard thereafter in that action.

I do not know by what steps this somewhat onerous judicial procedure was modified into our present practice. It remains, however, still, as formerly, judicial procedure. The authority of the Court through the medium of a Clerk of Court is required for the admission of a protestation into the minute-book of the Court of Session, and the extract of it contains a decerniture for expenses.

The present procedure is explained in Beveridge's Forms of Process, i. 270; Lord Ivory's Practice, i. 188; Shand's Practice, i. 277; and Mackay's Manual, 215. Beveridge explains that the period during which the protestation must be in the minute-book was settled by practice, and that it was allowed in order to secure that a pursuer should be certiorated that a protestation had been lodged against him. Lord Ivory seems to have been of opinion that, after warrant for extract had been issued, extract might be prevented by the pursuer producing his summons and paying expenses. But in the case of Graham v. Boosie, March 9, 1831, 9 S. 566, it seems to have been held by the majority of the Court that, after a warrant for extract had been given out, it did not signify whether extract had been actually issued or net, and that is the view of the law on which the 23rd section of the Act of 1850 seems to proceed. Mr Mackay says that after extract, if there has been no reponing within the ten days, the instance is at an end. Although I find no express statutory provision that the instance in an action may be destroyed through protestation, yet, of course, it is or was familiar enough in practice that that consequence happened after extract of protestation. There are not many examples reported, but I may refer to Sceales v. The Commercial Bank, February 4, 1839, 1 D. 465, where protestation was extracted for behoof of certain of the defenders which was held to destroy the instance against these defenders while leaving the instance against the other defenders unaffected, and the result was that the pursuer was compelled to raise a supplementary summons against the former defenders.

No case has been quoted to me in which the instance in a summons has been held

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to have fallen through protestation where the protestation has not been extracted. But looking to the case of Graham v. Boosie, and the terms of the 23rd section of the Act of 1850, I have little doubt that that might happen. But in considering the meagre authorities on the subject and the object of the procedure, I am not satisfied that it is imperative to inflict the penalty in every case in which it might competently be inflicted. I think there is room for excuse and for judicial discretion, and in this particular case I doubt whether any previous practice or authority would warrant the dismissal of the action, and I think that I am not bound to dismiss it.

Protestation is put up not to destroy a pursuer's action but to force it on. So long as it is in the minute-book it is a continuous demand on the pursuer to lodge his summons for calling, and if the pursuer calls the summons, that is in compliance with the defender's demand. A great deal is said by the writers on this point about scoring the protestation. So far as I can learn, that so-called scoring is effected by a marking on the entry in the minute-book that a certificate of the production of the summons with a view to calling has been exhibited, and the consequence of such a marking is that the keeper of the minute-book will not, after having made that entry, give warrant for extracting the protestation. But I find no ground for holding that the mere entry of a protestation will, while unscored, prevent the calling of a summons. The defenders could not object to it since it is just what they profess to desire. However, no doubt after the nine days have run, the position is different to this extent—that the defenders can manage to extract from the pursuer £3, 3s. of expenses. But it is to be noticed that scoring of the protestation is to be effected by the certificate that a summons has been lodged for calling. Now, in this case that summons was actually lodged for calling on the Monday, and it was from inadvertence, through ignorance, that this was not intimated to the keeper of the minute-book on the Monday (if that can be done on a Monday) or at the latest early on Tuesday morning. If that had been done, then the warrant to extract would not have been issued. In fact the summons was lodged with the Clerk of Court within the days allowed.

The protestation was in substance satisfied. The default was not in failure to lodge the summons, but only in failure to intimate to the keeper of the minute-book that it had been lodged, and I doubt whether, after that, a warrant to extract would be effectual.

There was nothing but a blunder—no culpable delay—and I have been referred to no authority or precedent for dismissing an action in such circumstances.”