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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v. Smith And Calder [1876] ScotLR 14_17 (18 October 1876) URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0017.html Cite as: [1876] ScotLR 14_17, [1876] SLR 14_17 |
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An action was dismissed by the Lord Ordinary “in respect of no appearance being made on the part of the pursuer.” A reclaiming note was presented, and the Court, in respect that the agent and not the client had been to blame, remitted to the Lord Ordinary to repone the pursuer upon payment of the expenses occasioned by his default.
This was an action of reduction at the instance of Andrew Morrison, a cashier in Glasgow, as executor of a deceased brother, against Adam Smith, writer in Falkirk, and John Calder, a client of the latter, of an assignation in favour of Smith of certain policies of insurance, on the ground of fraud and circumvention.
On the 12th May 1876 the record was closed on the summons and preliminary defences, but on the case being called in the Procedure Roll upon 10th June, the Lord Ordinary “in respect of no appearance on the part of the pursuer by either counsel or agent,” continued it till next day, and appointed Mr Arthur, S.S.C., “whose name appears on the record as agent for the pursuer, then to attend.” An explanation was given by counsel next day that it was owing to inadvertence that no appearance had been made, as the case had not been seen in the roll. This explanation was accepted. On 21st June a proof was appointed to take place on 5th July, but upon that day the Lord Ordinary, “in respect of no appearance being made on the part of the pursuer,” dismissed the action. The defenders' account of expenses was thereafter audited, and on 20th July the Lord Ordinary decerned for £90, the taxed amount.
The pursuer upon the first box-day in vacation (24th August) lodged a reclaiming note, dated 17th July, to be reponed against the decree of 5th July, but did not reclaim against the interlocutor decerning for expenses.
On the case being called in the Single Bills it was stated for the pursuer that, being resident in Glasgow, he had been obliged to leave his case in the hands of his agent, who had neglected it,
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although he had supplied him with ample funds. He had now employed another agent. The respondent opposed the motion, as the delays on the part of the pursuer had been numerous, and in any event asked that the pursuer should be found liable in substantial expenses.
Authorities— Trs. of the Free Tron Church v. Morrison, 13 Scot. Law Rep. 384; Anderson v. Garson, Dec. 16, 1875, 3 R. 254; Arthur v. Bell, June 16, 1861, 4 Macph. 841.
At advising—
It is impossible to entertain the proposition that the pursuer should be reponed except on very serious conditions as to expenses, and while I am not prepared in the circumstances to say that the reclaiming note should be refused altogether, I think that the pursuer must pay in full the expenses to which the defender has been put by his default. We are not in a position to determine how much these expenses are, and I think we should leave that to the Lord Ordinary to determine.
An apparent difficulty has been presented to us by the fact that the defender has already proceeded to have his account of expenses taxed, and has obtained decree, and that that interlocutor has not been brought under review. I desire to make two observations upon this point. The first is that we cannot touch that decree; and, in the second place, that that being so, I think we ought to dispose of this matter as if no such decree existed. Of course if the defender gives a charge upon the decree of 20th July, the payment of the expenses now to be found due by the Lord Ordinary as the condition of reponing the pursuer, if made, will be a payment to account of the £90 for which decree has already been obtained. But at present I give no opinion as to whether that decree can be suspended or not;
What I propose to do is to repone the pursuer against this decree by default on payment to the defender of the expense occasioned to him thereby, and to remit to the Lord Ordinary to ascertain the sum of expenses.
I agree in thinking that the delay has lain with the agent and not with the party. It would be hard to apply with a strong hand a universal rule where the agent has failed and the client has never had an opportunity of knowing the state of matters and getting his agent to take up the case. This is not a precedent for any other case. It is a very favourable case for a party desiring to be reponed, and it is quite right that the Lord Ordinary should fix the amount of expense which the pursuer must pay.
The following interlocutor was pronounced:—
“The Lords having heard counsel on the reclaiming note for Andrew Morrison, pursuer, against Lord Young's interlocutor of 5th July 1876, remit to the Lord Ordinary to repone the pursuer against the decree contained in the said interlocutor reclaimed against, on payment of the expenses occasioned to the defenders by the pursuer's default.”
Counsel for Pursuer— M'Kechnie. Agents— J. & A. Hastie, S.S.C.
Counsel for Defenders— Henderson. Agents— Waddell & M'Intosh, W.S.
