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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v. Garson [1875] ScotLR 13_166 (16 December 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/13SLR0166.html Cite as: [1875] SLR 13_166, [1875] ScotLR 13_166 |
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Page: 166↓
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A defender prayed to be reponed against a decree by default. Held that the granting or refusing such a prayer is matter for the discretion of the Court, and in the circumstances remit made to the Lord Ordinary to repone upon payment of previous expenses.
Garson was a member of the Imperial Building Association, and one of the defenders in an action brought against the Association by Anderson, another member, for payment of £420, the amount of a bill which he, as one of the trustees for and specially authorised by the Association, had accepted on their behalf, and which he had himself paid under threat of immediate personal diligence, the Association having failed to meet it. Defences in the action were lodged for Garson and another, and decree in absence was pronounced against the latter. When the case was called in the procedure roll, Garson at that time being the only defender, no appearance was made for him, and decree was given against him by default.
Against this decree he now prayed to be reponed, on the ground that he had not observed the case in the rolls. Garson acted as his own agent.
The following authorities were quoted— Arthur v. Bell, 16th June 1861, 4 Macph. 841; Wilson v. Stark, Feb. 17, 1844, 6 D. 692; Young v. Mackenzie, July 19, 1859, 21 D. 1358; Boak v. Watson, July 14, 1860, 22 D. 1468; Gordon v. Fraser, June 7, 1831, 9 S. 690; Maclaren v. Robertson, May 29, 1857, 19 D. 769.
At advising—
The other Judges concurred.
The following interlocutor was pronounced:—
“Remit to the Lord Ordinary to repone the said defender on payment by him of the expenses incurred by the pursuer in the cause up to this date.”
Counsel for the Pursuer— Trayner. Agents— A. & G. V. Mann, S.S.C.
Counsel for the Defender— Mackintosh, Agent—Party.
