Scottish Court of Session Decisions

In an action for payment of £81, 12s. 8d., raised in the Sheriff Court at Perth by Macdonald, Fraser, & Company, Limited, Perth Auction Mart, against Donald Dewar, Craigens, Auchterarder, the Sheriff-Substitute ( Sym) on 17th March 1903, before answer, allowed the parties a proof of their respective averments and to the pursuers a conjunct probation, and ordered the case to the roll of 20th March that a diet might be fixed.

The pursuers appealed, and on 25th May 1903 the Sheriff ( Jameson) recalled the Sheriff-Substitute's interlocutor, and before answer allowed the parties a proof of their respective averments, the defender to lead in the proof, and remitted to the Sheriff-Substitute to fix a diet of proof, and proceed with the cause.

On 29th May 1903, on the motion of the pursuers' agents, after intimation to the agent for the defender, a diet of proof was fixed in open court for 2nd July. No interlocutor fixing the diet was written out by the clerk or signed by the Sheriff-Substitute. Intimation that the diet had been fixed was given by the pursuers' agents to the agent for the defender, and they asked him if he intended to go to proof on the date fixed. The defender's agent replied that he did not intend to lead any proof on that date.

On 2nd July 1903 the Sheriff-Substitute pronounced the following interlocutor:—“In respect the defender has failed to appear at the diet of proof fixed for this date, holds him as confessed, and decerns against him in terms of the prayer of the petition.”

The defender appealed to the Court of Session, and argued—The interlocutor of

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the Sheriff-Substitute of 2nd July could not be upheld. No diet of proof had ever been fixed in terms of section 23 of the Sheriff Courts Act 1876, so it was impossible for the defender to be in default for non-appearance.

Argued for the pursuers and respondents—No doubt an irregularity had occurred in there not being a written and signed interlocutor recording the fact that a diet of proof had been fixed for 2nd July. But an interlocutor of this kind was merely a minute of what was done on the Bench. In a matter of this kind it was quite enough if the judge fixed the diet of proof verbally in open court. It was admitted that the diet of proof had been fixed in this manner, and ample notice that it had been so fixed was given to the defender. An irregularity of this kind was in the same position as a blunder in the words of an interlocutor. It could be corrected if necessary— Clark & Macdonald v. Bain, November 16, 1895, 23 R. 102, 33 S.L.R. 86.