Scottish Court of Session Decisions

David Inglis, farmer, Weisdale, Shetland, sued John Smith, also residing there, in the Sheriff Court of Lerwick for payment of £74, 17s. 3d., as the value of a horse and gig and other goods supplied to him. On 23d February 1881 the Sheriff-Substitute ( Rampini), in respect the defender had not entered appearance, decerned against him for that sum with taxed expenses. This decree was extracted and the defender charged thereon. On 4th May a procurator for the defender tendered a note and defences for him in terms of the Sheriff Courts Act of 1876. The note was in the following terms:—“The defender begs to submit to the Sheriff the following explanation of his failure to have the decree in this action recalled within seven days from its date, and also to produce herewith his defences to said action. The defender is a shepherd, and unacquainted with business. He had, however, previously seen summonses, but these being all prior to the Sheriff Court Act of 1876, were signed by the sheriff-clerk. The pursuer was not aware of the change in the initiatory writs in an action in the Sheriff Court, and that under the Sheriff Court Act of 1876 the initiatory writ was signed by the pursuer or his procurator. On the service of the summons the defender communicated with the pursuer's procurator, Mr Macgregor, whom, from his previous knowledge of the mode of signing the initiatory writs, the defender thought was sheriff-clerk; and in that belief, and waiting for an answer to his communication, which never came, allowed decree to be obtained. The first knowledge he had of the decree was when he was charged for payment. The sum of £5 is consigned herewith. For these reasons the defender craves the Sheriff to recall the said decree.”

The Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. c. 70), sec. 14, sub-sec. 2, provides—“Should the defender fail to take within seven days after the date of such decree the steps hereinbefore mentioned, with a view to having the decree recalled or to follow out the same, he may obtain the recall of the decree, whether extracted or not, at any time before implement has followed thereon, or so far as the same shall not have been implemented, by presenting to the Sheriff a written note in which he shall set forth his explanation of his failure to enter appearance in the action, and to take within such seven days the steps hereinbefore provided as aforesaid, or to follow out the same, and producing with such note his defences to the action in which the decree was granted, and any documentary evidence he may have in support of such explanation, and consigning the sum of £5; and it shall not be necessary for the pursuer to lodge any answer to the said note, but it shall be lawful for the Sheriff, if satisfied with the explanation aforesaid, to recall the said decree so far as not implemented, and order payment to the pursuer out of the consigned money of his expenses, including the expense of any charge

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or diligence upon the decree, or to refuse the note or do otherwise as he shall think just.”

The Sheriff-Substitute, after hearing parties' procurators, refused the note, adding to his interlocutor this note:—“Considering the stage to which this action has been allowed to advance, and the unsatisfactory nature of the excuse for the defender's negligence, the Sheriff-Substitute does not think it desirable to grant the defender's motion.”

On appeal the Sheriff ( Thoms) adhered, and added this note:—“Looking to the terms of the order for service, and the fact of personal service, the Sheriff agrees with the Sheriff-Substitute as to the unsatisfactory nature of the excuse made by the defender for not attending to his interests in this case. It would just be a premium upon procrastination were a defender, three months after he allows decree to go out against him, to be enabled to begin a litigation which would in ordinary course have been ended by this time.”

The defender appealed to the Court of Session.

It was stated at the bar that the pursuer had used arrestments on the dependence of the action, and obtained a decree of furthcoming against the defender.

The pursuer (respondent) objected to the competency of the appeal. He argued that the remedy provided by the Sheriff Court Act was one entirely in the discretion of the Sheriff. If he thought fit to refuse the note, his judgment could not be appealed. The only course open to the defender was to proceed by suspension or reduction of such a decree after extract. The decree of furthcoming was “implement” in the sense of the section in question— M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085.