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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nicol v. Johnston [1888] ScotLR 26_61_1 (17 November 1888) URL: http://www.bailii.org/scot/cases/ScotCS/1888/26SLR0061_1.html Cite as: [1888] SLR 26_61_1, [1888] ScotLR 26_61_1 |
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Page: 61↓
[Sheriff of the Lothians.
The Statute of 1853, sec. 6, provides—“When any condescendence or defences… or other paper shall not be given in within the periods prescribed or allowed by this Act, the Sheriff shall dismiss the action, or decern in terms of the summons, as the case may be, by default, unless it shall be made to appear to his satisfaction that the failure to lodge such paper arose from unavoidable or reasonable causes, in which case the Sheriff may allow the same to be received on payment of such sum in name of expenses as he shall think just.”…
In an action in the Sheriff Court the Sheriff-Substitute decerned against the defender in respect his defences were not timeously lodged. On appeal the Sheriff, after
Page: 62↓
hearing parties, recalled this interlocutor, and allowed the defences to be received on payment of ten shillings of expenses. In an appeal to the Court of Session, held that the Sheriff had exercised a discretion conferred upon him by the statute of 1853, sec. 6, of which he had not been deprived by the statute of 1876, and that the Court would not inquire whether or not the Sheriff had exercised aright his statutory discretion. The Sheriff Court Act 1853, sec. 6, provides that “When any condescendence or defences … or other paper shall not be given in within the period prescribed or allowed by this Act, the Sheriff shall dismiss the action, or decern in terms of the summons as the case may be, by default, unless it shall be made to appear to his satisfaction that the failure to lodge such paper arose from unavoidable or reasonable causes, in which case the Sheriff may allow the same to be received on payment of such sum in name of expenses as he shall think just.”…
The Sheriff Court Act 1876 alters in certain ways the periods prescribed for the lodging of written pleadings, and sec. 48 thereof repeals sec. 15 of the Sheriff Court Act 1853, which provides for the dismissal of actions not prosecuted within a certain time.
On 15th September 1888 James Nicol, Edinburgh, raised an action in the Sheriff Court of the Lothians and Peebles at Edinburgh, against Robert Fleming Johnston, W.S., Edinburgh. Defences were due on 2nd October, on which date the Sheriff-Substitute, on the motion of the defenders, adjourned the diet for lodging defences for seven days, and granted leave to appeal.
On 19th October the Sheriff, having heard parties, recalled this interlocutor, and remitted to the Sheriff-Substitute to proceed with the cause. On 23rd October the Sheriff-Substitute, in respect defences were not timeously lodged, held the defender as confessed, and decerned against him in terms of the prayer of the petition.
The defender appealed to the Sheriff, who on 31st October pronounced the following interlocutor:—“The Sheriff having heard the agent for the appellant (defender) and the pursuer, on the appeal for the defender, Recals the interlocutor of the Sheriff-Substitute, dated 23rd October 1888, and allows the defences to be received on payment by the defender to the pursuer of the sum of ten shillings sterling, and remits to the Sheriff-Substitute to proceed with the cause.”
The pursuer appealed to the Court of Session, and argued—The last day on which the defences were due was the 2nd October. Though this was the first Court day after the serving of the petition, the induciæ for defences had expired, so a further prorogation for eight days was incompetent. As to the interlocutor of 31st October, the Sheriff was wrong in allowing the defences to be received on payment of a fine of 10s.; either no penalty should have been imposed, or one of £2 should have been exacted in terms of sec. 14, sub-sec. 1 of the Act of 1876. The Act of 1876 took away the discretion which the Sheriff had under the Act of 1853, sec. 6, for the periods for lodging pleadings, to which that discretion applied, had been altered by the former Act— M'Gibbon v. Thomson, July 14, 1877, 4 R. 1085; Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. c. 70), secs. 14, 16 and 20.
Argued for the respondent—The interlocutor of the Sheriff-Substitute of 2nd October was admittedly pronounced in error and could not be defended. The case depended upon the provisions of the Act of 1853, which being not expressly repealed by the Act of 1876 remained, except when altered, in force. By sec. 6 of the Act of 1853 the Sheriff was vested with a discretion which he had exercised, and the Court would not interfere— Bainbridge v. Bainbridge, January 18, 1879, 6 R. 541.
At advising—
It is urged, however, by the appellant that the provisions of sec. 6 apply only to the failure to lodge papers at the times specified in the Act of 1853, and that as these times have been altered by the Act of 1876, this clause can in no way regulate the procedure which ought to have been followed in the present case. The question, therefore, comes to be, whether the Act of 1876 does repeal the Act of 1853. Now, the 48th section of the Act of 1876 expressly repeals sec. 15 of the Act of 1853, and in so far also as the latter Act alters the former, it thereby repeals the earlier statute. To this, but to no further extent, the Act of 1876 can be said to repeal the Act of 1853. The discretion conferred upon the Sheriff by the earlier statute accordingly remains, and in the exercise of that discretion the interlocutor of 31st October was pronounced by the Sheriff. As to whether the Sheriff exercised his discretion rightly, that is a matter into which we shall never inquire. I am therefore for refusing this appeal.
The Court refused the appeal.
Counsel and Agent for Appellant—Party.
Counsel for Respondent— C. S. Dickson Agent— Robert A. Robertson, S.S.C.
