Scottish Court of Session Decisions

The Sheriff Courts Act 1853 (16 and 17 Vict. c. 80), section 6, enacts—“Where any condescendence or defences, or revised condescendence or revised defences or other paper shall not be given in within the periods prescribed or allowed by this Act the Sheriff shall dismiss the action or decern in terms of the summons as the case may be, by default, unless it shall be made to appear to his satisfaction that the failure to lodge such paper arose from unavoidable or reasonable causes, in which case the Sheriff may allow the same to be received on payment of such sum in name of expenses as he shall think just.”

The Sheriff Courts Act 1876 (39 and 40 Vict. c. 70), section 20, enacts—“Where in any defended action one of the parties fails to appear by himself or his agent at 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 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.”

Mr Robert Brown, hotel keeper, Aberdeen, died intestate in 1887, survived by his widow and five children, Mrs Brown was appointed his sole executrix, and in 1892 she and her children assigned the whole executry estate to trustees for certain purposes.

Mrs Brown died in 1893, after which date the executry estate of Mr Brown was managed by the trustees, original and assumed, who appointed Mr Milne, one of their number, to act as law-agent in the trust.

In 1896 it was resolved that the executry estate should be wound up, and the other trustees called upon Mr Milne for an accounting and for delivery of the papers connected with the estate. Mr Milne having delayed to produce these, though repeatedly called upon to do so, an action was raised against him by the other trustees in the Sheriff Court of Aberdeen.

The pursuers craved the Court—“To ordain the defender to produce a full account of his intromissions as one of the trustees and as law-agent for the trustees acting under the said trust-disposition and deed of nomination; and to pay to the pursuers the sum of £509 sterling, or such other sum as may be the true balance due by him to them, with the legal interest thereof from the date of citation hereon till payment: And failing his producing such account, to ordain the defender to pay to the pursuers the sum of £500 sterling with interest as aforesaid: Further, to ordain the defender to deliver to the pursuers the whole title-deeds, writs, books, accounts, vouchers, notices, receipts, and all other documents whatsoever that have come into his possession as a trustee under the foresaid trust-disposition as law-agent for the said Robert Brown or for the said trustees; to find him liable in expenses; and to grant warrant to arrest on the dependence.”

No defences were lodged by the defender, but he lodged a minute in the following terms—“The defender has in course of preparation the trust accounts, and expects to have them ready for production to the Court in the course of next week. The transactions extend over a considerable period of time, are numerous and somewhat involved, and the labour of producing them is pretty considerable. The accounts will show a debit balance against the trust-estate, for which the defender has a lien over the whole title-deeds, writs, books, accounts, and other documents called for by the trustees in this action, and he claims his right to retain these Until the said balance is settled. In respect of this minute the defender craves the Court to sist the process for a period of fourteen days to allow of the production of the accounts, or, alternatively, to pronounce an order for production of the accounts within the time specified.”

On 12th May 1897 the Sheriff-Substitute, in respect of the minute, sisted the cause for ten days to allow of production of defender's accounts.

On 26th May the Sheriff-Substitute pronounced the following interlocutor—“On the pursuers' agent's motion, in respect of defender's failure to lodge defences or produce the accounts in question, decerns against the defender for payment to the

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pursuers of the sum of five hundred pounds sterling, with interest as prayed for, in terms of the second alternative conclusion of the prayer of the petition, and further decerns against the defender in terms of the conclusion for delivery.”

The defender appealed to the Sheriff, who on 15th June, “in respect of no appearance for or by the defender and appellant at this diet,” dismissed the appeal.

The defender appealed to the Court of Session.

Argued for respondent—The appeal was incompetent, being really nothing but an application for reponing, and the Court would not interfere lightly with the Sheriff's discretion or with decrees given in virtue of sec. 6 of the 1853 Act and sec. 20 of the 1876 Act— M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085. The appellant had been given ample time to produce his accounts, and had no reasonable excuse for failing to do so.

Argued for appellant—The Court should remit to the Sheriff to repone him. He had been guilty of carelessness, but owing to the complicated nature of the accounts demanded, it was only natural that he should require time. The 6th section of the 1853 Act did not apply. It might be that the 20th section of the 1876 Act applied, but the Court might follow the course taken in Bainbridge v. Bainbridge, January 18, 1879, 6 R. 541.