Scottish Court of Session Decisions

William Bain, accountant, Edinburgh, brought an action in the Sheriff Court at Edinburgh against George Lawson & Son, bakers, Edinburgh, and William Lawson, sole partner of that firm, in which he craved decree for payment of the sum of £50, 3s. 10d.

By interlocutor dated 19th July 1898 the Sheriff-Substitute ( Maconochie) appointed the case to be put to the roll on Tuesday, 26th July, with a view to adjust and close the record.

At this diet there was no appearance for the pursuer, and it was intimated by the Sheriff-Clerk that the dues payable by each party before the closing of the record had not been paid by him or on his behalf.

The Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. c. 70), sec. 20, enacts as follows:—“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 appear to the contrary, he shall, whether a motion is made to that effect or not, pronounce decree as libelled or absolvitor (as the case may require) with expenses; or, if all parties fail to appear, he shall, unless a sufficient reason appear to the contrary, dismiss the action.”

The Act of Sederunt, 4th December 1878, enacts as follows:—“X. Whenever a procurator on one side attends any meeting ordered by the sheriff for adjusting the record, or for any other purpose, and the other is absent, or not prepared to proceed, the sheriff shall have power to decern against the opposite party for payment of the fee for attendance to the procurator who is ready.”

Under the table of fees annexed to the same Act of Sederunt the following fee is made chargeable:—Table I. 6 (21). “Attendance at calling in motion or compearance roll, or at diets for adjustment, or when the case is ordered to the roll for any purpose other than a debate, 5 shillings.”

The Act of Sederunt, 21st November 1895, made in pursuance of the powers vested in the Lords of Council and Session by the Courts of Law Fees (Scotland) Act 1895 (58 Vict. c. 14), sec. 2, enacts as follows:—“The sheriff-clerk shall be responsible for the collection of all fees specified in the tables, and it shall be his duty to refuse to receive any paper chargeable with a fee, or transmit any service or petition for completion of title for extract, or allow any marking of an appeal, or other marking, to be made in respect of which a fee is payable unless the appropriate fee has been paid; and it shall further be his duty when a fee is declared payable prior to any particular step being taken in a process, and such fee has not been paid by either party, to call the attention of the sheriff to the matter, and the sheriff, unless the fee is thereupon paid, shall proceed with the case as if the party by whom the unpaid fee is payable were absent or in default.” By the definition clause (sec. 7) “sheriff” includes “sheriff-substitute.” Among the fees which are declared to be chargeable in terms of sec. 1 is the following:—Table A. Part XII. 4. “Each party before the closing of the record, 5 shillings.”

On 26th July (the day appointed for the adjustment and closing of the record) the Sheriff-Substitute issued the following interlocutor:—“The Sheriff-Substitute, in respect of the pursuer's failure to attend this diet of the cause, and also in respect that the Sheriff-Clerk calls the attention of the Sheriff to the fact that the dues of

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‘closing the record’ under the table of fees, amounting to 5s., payable by the pursuer, have not been paid in terms of the Act of Sederunt, dated 21st November 1895, Dismisses the action: Finds the defenders entitled to expenses.”

The pursuer appealed to the Sheriff ( Rutherfurd), who on 2nd November 1808 issued the following interlocutor:—“Adheres to the said interlocutor, and dismisses the appeal: Finds the pursuer liable to the defenders in £1, 1s. of additional expenses, and decerns for payment thereof: Further, remits the case to the Sheriff-Substitute.”

Note.—“The only explanation on the part of the pursuer of his failure to appear on the 26th of July, at the diet fixed for the adjustment and closing of the record, was the statement made by his agent at the bar, to the effect that the diet in question being just at the close of the summer session, when he (the agent) was much occupied, the matter escaped his attention. This does not appear to the Sheriff a sufficient reason for reponing the pursuer, looking to the observations of the Judges in the First Division of the Court of Session in the cases of Stephenson v. Hutcheson & Anderson (1885), 12 R. 923, and M'Gibbon v. Thomson (1877), 4 R. 1085.”

The pursuer appealed, and argued—(1) The provisions of the Sheriff Courts (Scotland) Act 1876, sec. 20, did not apply to a diet for adjustment. The penalty for nonattendance at such a diet was provided by the Act of Sederunt, 4th December 1878, sec. X. In the case of a proof or a debate the Sheriff could not proceed with the cause unless both parties were present or represented, and great inconvenience was caused by the failure of one party to appear. This was the reason for the highly penal provisions of sec. 20, and accordingly they were only intended to apply to diets for proof or debate or diets ejusdem generis. The attendance of parties was not necessary at a diet for adjustment. The Sheriff could proceed in absence. The Sheriff-Substitute ought not therefore to have dismissed the action here. There was no such default as was contemplated by the section. There was no case in which decree had been given for default in a defended action except for failure to attend at a diet of proof or debate. Further, decree of dismissal was not competent under sec. 20, which only warranted “decree as libelled” or “absolvitor.” (2) Even if there was default here technically sufficient to warrant dismissal, the Sheriff ought to have reponed the pursuer upon terms— M'Carthy v. Emery, February 27, 1897, 24 R. 610. The terms should have been merely payment of the expense of the appearance for the defenders at the diet of adjustment.

Argued for the defenders—(1) The Sheriff-Substitute could not proceed with the adjustment here at the diet appointed, because the pursuer had not paid the dues chargeable under the Act of Sederunt, 21st November 1895, Table A, Part xii. 4, and under section 2 of that Act of Sederunt he was entitled in these circumstances to treat the pursuer as in default. (2) The Sheriff-Substitute had power to dismiss an action for default at common law apart from section 20. (3) The provisions of section 20 applied to diets for adjustment. (4) It was a question within the discretion of the Sheriff-Substitute whether the circumstances justified him in dismissing an action for default, and it was a question within the discretion of the Sheriff whether the default had been so excused as to make it just that the defaulting party should be reponed. The Court ought not readily to interfere with what the Sheriffs had done in the exercise of their discretion— M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085; Stevenson v. Hutcheson & Anderson, May 12, 1885, 12 R. 923. (4) The Sheriff-Substitute was justified in dismissing the action here. If he had not done so he would just have had to continue the cause indefinitely until the pursuer saw fit to pay the dues chargeable before the record could be closed. The Sheriff was justified in refusing to repone the pursuer. The excuse stated by him was quite inadequate— M'Gibbon, cit., and Stevenson, cit.