Scottish Court of Session Decisions

In September, 1836, the advocator, M'Ewan, and David Clark, his mandatary, brought an action before the Sheriff of Forfar against the respondent, Mrs Caithness, expressly founding in his summons upon certain documents which were neither in his own nor the defender's custody, but in the possession of other parties known to him. The Sheriff-substitute pronounced an order for defences, and thereafter appointed the pursuer to lodge the documents libelled on, and granted him a diligence against havers for their recovery. The pursuer reclaimed against the interlocutor granting the diligence, alleging, that by the Sheriff-Court Act of Sederunt, he was only bound to produce, at this stage of the proceedings, such documents as were “in his custody or within his power;” but the interlocutor was adhered to, and no appeal taken to the Sheriff. The pursuer failed to execute the diligence, and the defender being consequently prevented from giving in defences on the merits, the Sheriff, after various procedure, renewed the order for defences, stating in a note “that it was open to the defender to give in a short defence craving decree of absolvitor in respect the pursuer has neither recovered nor produced the documents in question.” The defender lodged defences accordingly, craving decree of absolvitor, and pleading, That the defender being ignorant of the facts alleged in the summons, and out of which the claims sued for arose, was not bound to state peremptory defences till the documents founded on were produced; and that the pursuer having failed to execute the diligence granted for recovery of the documents, it must be held either that there were no such writings, or that they had been wilfully withheld.

On 20th June, 1837, the Sheriff-substitute, in respect the pursuer had failed to produce the documents and to execute the diligence, “sustained the dilatory defence founded upon the non-production of said documents, and assoilzied the defender with expenses.” To this interlocutor the Sheriff, in respect no renewal of the diligence was asked, adhered (25th July). ^*

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* “Note.—The puisuer's objection on the Act of Sederunt was finally disposed of by the interlocutor of 29th November last, against which no appeal was taken to the Sheriff, and the principle admitted by the pursuer taking a diligence.”

Of these interlocutors M'Ewan and Clark brought an advocation, in which they pleaded;—

1. By the Sheriff-Court Act of Sederunt, and the practice of the supreme, as well as of all inferior courts, a pursuer is bound to produce along with his summons, only such documents as are in his custody or within his control, and he cannot be required to produce documents, which, although founded upon in the summons, are in the possession of third parties, and not recoverable without a legal compulsitor.

2. A pursuer cannot be compelled to recover by diligence, documents founded upon in his summons before the defender has lodged regular defences against the action.

Mrs Caithness in answer pleaded;—

The advocators were bound, in the circumstances stated, either to have produced the writings founded on in their summons, or to have taken a diligence for recovery of the same. At all events, seeing that such diligence was granted, the advocators ought to have availed themselves of it, and could have no good reason for refusing to do so.

The Lord Ordinary pronounced the following interlocutor, adding the note subjoined: ^†—“Finds that the documents referred to in the pleadings being expressly founded on in the summons, and the advocator having stated in his minute, No. 3 of process, that they were not in his possession, but in the possession of other persons known to him—not the defender—there was no incompetency under the act of sederunt for the Sheriff-Court, in the Sheriff granting diligence to the pursuer for the recovery of them before any defences had been lodged: Finds, separately, that defences were lodged before any farther proceeding took place, and that it would have been then not only competent, but perfectly just, in respect of the dilatory defence stated, to require the pursuer to recover and produce, at his own expense, the writs which formed the express grounds of his action, before calling on the defender to state her full defences on the merits; and so far repels the reasons of advocation; but in respect that the diligence was not in fact renewed after the defences were lodged; and farther, in respect that the final judgment of the Sheriff was erroneous and incompetent, in so far as it assoilzied the defender—Remits to the Sheriff, with instructions to recal his interlocutors of the 20th June and 25th July, 1837, and thereafter to grant diligence of new to the pursuer, for recovery of the writings founded on in the summons; with certification, that unless the said writings shall be produced, or the diligence reported, the dilatory defence will be sustained, and the action dismissed, and to allow additional defences, if necessary, to be given in, and thereafter to proceed farther in the cause according to law, and as may appear to him to be just, with power to him, in the progress of the cause, to determine all questions of expenses in the inferior court. But in respect that the advocator put his case throughout, in the inferior court, on a ground which was unreasonable in itself, and has been repelled by this interlocutor, and that any error in the last judgment of the Sheriff might easily have been prevented or corrected, without the necessity of bringing an advocation, if the advocator had not been determined to adhere to the plea of total incompetency assumed by him—Finds him liable in the expenses of this advocation.”

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† “The advocator, by insisting so peremptorily on a mere point of form, has delayed his cause for more than a year, and created a considerable expense for no earthly purpose. It is apparent on the face of the summons, that till the deeds founded on were produced, or their tenor ascertained or admitted, no real progress in the cause could be made; and it clearly was the advocator who was bound, in the first instance, to be at the expense of recovering them; then, why should he not have acted on the simple granting of the diligence by the Sheriff? His not doing so, and reclaiming against the interlocutor, was not consistent with a spirit of fair litigation; and though at first view, some difficulty may be raised in the mere matter of form, the Lord Ordinary is satisfied that the Act of Sederunt for the sheriff-courts affords no sanction to the plea of incompetency stated. But, after defences were lodged, even that supposed difficulty was removed; and if the advocator, instead of giving in replies, repenting all his former arguments, and actually demanding decree, had simply asked a renewal of the diligence, there would have been an end of the discussion. The Lord Ordinary rather thinks, that notwithstanding his not doing so, the Sheriff should have renewed the diligence, to give him an opportunity, now that defences were lodged, of still recovering the writs. But, considering the advocator's pleas in his replies, he has no right to complain that this was not done. The Sheriff's interlocutor was certainly incorrect in another point, because the effect of sustaining the dilatory defence could only be to dismiss the action, which would have left it open to the pursuer to raise another, not to assoilzie the defender, which would make the decree res judicata, and is incompetent without a record closed. But the advocator certainly could have reclaimed to the Sheriff-substitute on both points; and if he had then asked a renewal of the diligence, there can be no doubt that it would have been granted. The advocation, therefore, appears to have been altogether unnecessary. The appeal to the Sheriff merely brought under his notice the plea so obstinately persevered in by the advocator.”

The advocators reclaimed.