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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Glen v. Stewart [1901] ScotLR 39_129 (21 November 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0129.html Cite as: [1901] SLR 39_129, [1901] ScotLR 39_129 |
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Page: 129↓
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The pursuer in an action of damages having obtained the consent of the defenders to a continuation for adjustment of issues misunderstood the scope of the consent and failed to lodge issues before the day appointed for adjustment. The Lord Ordinary, in respect of that failure, assoilzied the defenders. On a reclaiming-note the Court reponed the pursuer.
Observed ( per Lord Kinnear), and concurred in by the Lord President and Lord M'Laren, that unless in a particular case it has been expressly taken away by statutory enactment, the Court has power to repone at common law.
In two cognate actions of damages for slander at the instance of Robina Glen against Thomas Stewart and against William Brown Thomson respectively, the Lord Ordinary (
Stormonth Darling ) on 8th November 1901 assigned the 15th of that month for the adjustment of issues.The Act of Sederunt of 15th July 1865 enacts as follows:—Section 12—“All appointments for the lodging or adjustment of issues shall be held to be peremptory, and if the issue or issues be not lodged within the time appointed it shall be competent to the opposite party to enrol the cause and to take decree by default, which decree by default shall not be opened up by consent of parties, but only on a reclaiming-note. And it shall not be competent by any consent of parties to delay the adjustment of the issues beyond the second statutory meeting, but if issues shall not then be adjusted it shall be in all cases imperative on the Lord Ordinary to report the case to the Inner House in terms of the statute.”
The Act of Sederunt of 10th March 1870, sec. 1, sub-sec. 5, enacts as follows:—“In every case in which proof is to be taken before a jury issues shall be adjusted either at the time of proof being appointed in the cause, or on a day to be fixed not later than eight days thereafter, and the parties shall lodge the issues respectively proposed by them two days before the day so fixed.”
On 14th November the agents for the pursuer wrote to the agents for the defenders in the following terms:—“Dear Sirs,—We shall be unable to send you the p.p. of closed records in these cases for revisal until the afternoon, and we are afraid prints cannot be lodged in process in time for the adjustment of issues to-morrow. We purpose, accordingly, instructing our counsel to ask for a continuation, and assume you have no objection to same being granted.—Yours faithfully, Clark & Macdonald”
The agents for the defenders replied on the same day as follows:—“Dear Sirs,—We have received your letter of this date, and have no objection to your obtaining a continuation for the adjustment of issues.—Yours faithfully, Macpherson & Mackay.”
The pursuer relying on the letter quoted as referring to the time for lodging as well as adjusting issues, lodged no issues, but appeared on 15th November and moved for a continuation. The defenders moved for absolvitor, in deference to an opinion indicated by his Lordship that that was the appropriate motion in the circumstances. Thereupon, of the same date, in both actions the Lord Ordinary (Stormonth Darling) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel, in respect of the pursuer's failure timeously to lodge her issues, assoilzies the defender from the conclusions of the summons, and decerns.”
The pursuer reclaimed, and asked to be reponed.
Argued for the pursuer and reclaimer—section 12 of the Act of Sederunt of 15th July 1865 expressly afforded the means of obtaining the remedy sought by reclaiming-note. Section 1, sub-section 5, of the Act of Sederunt of 10th March 1870 was not peremptory but directory as to the lodging of issues according to the existing practice as illustrated by the Outer House judgment in Weston v. Caledonian Railway Company, October 13, 1895, 3 S.L.T. 232. Before moving for decree by default it was necessary to enrol for the purpose and give notice of the enrolment—Act of Sederunt 15th July 1865, sec. 12. The Court only refused the remedy of reponing in cases where there had been some more serious fault than mere failure to lodge a paper— Arthur v. Bell, June 16, 1866, 4 Macph. 841, 2 S.L.R. 88; M'Kean v. Lorimer, January 27, 1877, 14 S.L.R. 274. In this case there had been a mere misunderstanding on the part of the pursuer's agent as to the scope of the consent to a continuation, and against the consequences of such a misunderstanding the pursuer was entitled to be reponed— Anderson v. Garson, December 16, 1875, 3 R. 254, 13 S.L.R. 166; Morrison v. Smith, October 18, 1876, 4 R. 9, 14 S.L.R. 17; M'Carthy v. Emery, February 27, 1897, 24 R. 610, 34 S.L.R. 455; Bainbridge v. Bainbridge, January 18, 1879, 6 R. 541, 16 S.L.R. 284; Greig v. Sutherland, November 3, 1888, 8 R. 41, 18 S.L.R. 39.
Argued for the defenders—It was incompetent, even of consent, to delay the time for lodging issues— Anderson v. Glasgow and South—Western Railway Company, December 20, 1865, 4 Macph. 259, 1 S.L.R. 68— Mathieson v. Scottish Trade Protection Society, December 7, 1898, 1 F. 234, 36 S.L.R. 163. If the Court was of opinion that the pursuers should be reponed, then the order which should be
Page: 130↓
pronounced was an order of new ordering issues upon conditions as to expenses.
These last words seem plainly to indicate that on a reclaiming-note the interlocutor may be opened up, and the only question appears to be whether we should exercise that power in the present case.
Now it seems to me that we have here a case of misunderstanding and not of gross contumacy, and a case therefore different from those in which no appearance was made for one of the parties. Accordingly I think we may repone here, so as to put matters into the position which they occupied before the interlocutor reclaimed against, on condition of the payment of expenses since the date of the interlocutor ordering issues, which was the last effective order.
In each action the Court pronounced an interloctutor in the following terms:—
“Recal said interlocutor [of 21st November 1901], and remit to the Lord Ordinary of new to assign a date for the adjustment of issues, and to proceed as may be just; Find the pursuer liable to the defender in expenses since 8th November current, and remit,” &c.
Counsel for the Pursuer and Reclaimer— A. M. Anderson— Lyon Mackenzie. Agents— Clark & Macdonald, S.S.C.
Counsel for the Defenders and Respondents— T. B. Morison. Agents— Macpherson & Mackay, S.S.C.
