Scottish Court of Session Decisions

Lord President—We must not encourage irregularities; at the same time, the way in which this point presents itself leaves little doubt of what we should do. The first interlocutor is admitted to be quite correct. The next is that under date 10th October, and it is said to be irregular. It is said that what the Sheriff-Substitute ought to have done was to appoint a meeting. I am not prepared to hold that an interlocutor was necessary for the appointment of a meeting, and if the Sheriff-Substitute appointed a revisal when the parties were before him, it appears to me to have been sufficient. Now there is nothing on the face of the interlocutor of 10th October to shew that the parties were not present, so we must assume that they were, and what the Sheriff-Substitute did was this. He had before him a condescendence and defences and an allegation of a counter claim in the defences. He was satisfied that the pursuer's own record was sufficient, but he felt that the defender's statement required an answer. He accordingly ordered it to be answered within ten days. I cannot say that was incompetent. It was a limited and proper exercise of his power of ordering a revisal. Well then, this order is implemented, and the Sheriff appoints a meeting and an adjourned meeting in terms of the statute. It is said that the adjourned meeting was held at too distant a date, but whether that was the case or not the parties appeared at it, and what was done was not of consent, for the purpose of defeating the provisions of the statute, but on the motion of the present appellant. That there was an irregularity at that meeting in ordering revised papers is no doubt true, but the party now complaining is the very man who proposed it. If the irregularity had affected the jurisdiction of the Sheriff-Substitute, that would have been a different matter, but this is not a case of that kind. It is merely a question of the regularity of process; and though a party may make such an objection, and get the irregular proceeding set aside from the time when the irregular proceeding took place, we are not bound to listen to a party who has himself been the cause of the irregularity. The case of Kessack is quite distinct. Nothing was done there of consent, or on the motion of one of the parties, but all by the Sheriff-Substitute himself disregarding the statute. The Sheriff dismissed the action; but that was a mistake. Accordingly the appellant was the defender, who contended that he was entitled to expenses. The pursuer, on the other hand, contended that though there was an error, the Sheriff was not entitled to dismiss the action. The Court gave effect to the argument of the respondent, and remedied the whole matter by recalling and remitting to the Sheriff to take up the case at the point where the irregularity commenced. But neither the pursuer nor the defender was there to blame. This is a contrast to that case, and I am against listening to the complaint of a party in the circumstances of the appellant.

The other Judges concurred.