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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cumming v. Orchard [1871] ScotLR 9_158 (13 December 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0158.html
Cite as: [1871] SLR 9_158, [1871] ScotLR 9_158

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SCOTTISH_SLR_Court_of_Session

Page: 158↓

Court of Session Inner House Second Division.

Wednesday, December 13. 1871.

9 SLR 158

Cumming

v.

Orchard.

Subject_1Process
Subject_2Sheriff-Court Act 1853, § 15
Subject_3Dismissal of Action.
Facts:

The enrolment of a cause in the roll book of the Sheriff-Court is a sufficient procedure to prevent the action standing dismissed under the above section.

Headnote:

This was an action of forthcoming in the Sheriff—Court of Inverness. A proof was ordered by interlocutor on 28th June. On 13th July the case was enrolled in the roll book by the pursuer's agent, and was dropped. The next procedure was the following interlocutor by the Sheriff-Substitute ( Blair):—

“ Inverness, 19 th October 1871.—The Sheriff-Substitute having heard the defender's agent on his motion for revival of the action, finds that no sufficient reason has been stated for reviving it, and that no offer is made to pay expenses.

Note.—The only motion by the defender's agent was a motion for revival, and this memorandum is placed on the minutes at his urgent request, with the view of recording his application and the grounds on which the Court refused it.”

The defender appealed.

Strachan for him.

Rhind for respondent.

At advising—

 Judgment:

Lord Justice-Clerk—I am of opinion that this appeal is competent, and that we ought to refer the case back to the Sheriff-Substitute. I think there has been a mistake throughout respecting the 15th section. The action never did expire. There was sufficient procedure to save it. The whole question is, whether an enrolment is such procedure in the cause as will satisfy the requirements of this statute. I presume the enrolment is bona fide. I say nothing as to its effect if it were a mere pretence.

The words of the section are these—“Where in any cause neither of the parties thereto shall during the period of three consecutive months have taken any procedure therein.” An ordinary enrolment is unquestionably procedure, for thereby the case is brought before the Court. The matter is brought under the consideration and cognisance of the Judge. The party who enrols is bound to follow out his motion; and, if the case be dropped, will be held liable in expenses. This case never did get into the dormant or purgatorial state to which the provisions of the statute refer. In the present state of matters, therefore, I think that the interlocutor of the Sheriff-Substitute is wrong.

Lord Cowan—I concur. The case depends upon the competency of the Sheriff in exercising the statutory power conferred on him by the 15th section of the Sheriff-Court Act of 1853. He has held that three months had elapsed since any procedure had taken place, and that the cause could only be revived by an interlocutor pronounced, or cause shown. If it appear that there had been sufficient procedure to keep the cause alive, the interlocutor must be beyond the statutory discretion of the Sheriff-Substitute. Therefore the appeal is quite competent. The question then is, Whether there was a bona fide procedure? There is evidence before us that there was procedure. The case appeared in the roll of causes before the Sheriff. We must presume that the parties appeared, as there is no evidence that they were absent. The case comes near to the case of Stewart v. Grant, in which the Lord Justice-Clerk said—“I cannot doubt that the appearance of a cause in the roll book of the Court on a day within the three months till the expiry of which the process is a going process, and a marking upon the margin that avizandum has been made on that day, is a step in the cause.” Though there is no marking by the Sheriff, we have one by the Sheriff-clerk. We are only acting on the principle established in Stewart v. Grant if we sustain this appeal.

Page: 159↓

Lord Benholme—I am of the same opinion. It is not necessary that there should be an interlocutor of the Sheriff in order to procedure. Nor is it necessary that the cause should be advanced. If there had been an adjournment of the cause that would have been enough.

Lord Neaves—I am of the same opinion. I look with satisfaction on this section of the statute, but it is not to be judicially construed. I do not say that going through the form of enrolment, if the parties did not appear, would be enough to save a cause. But here the party who enrolled the case, and was entitled to ask for circumduction and his expenses, waived his right. When the parties again appear the Sheriff refuses to do anything. The appellant is entitled to maintain that the action is alive, and to obtain redress. The interlocutor of the Sheriff-Substitute is a plain denial of justice, and we should take it out of the way.

Solicitors: Agents for Pursuer— D. Crawford & J. Y. Guthrie, S.S.C.

Agent for Defender— David Cook. S.S.C.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/09SLR0158.html