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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pearson v. M'Gavin and Co [1866] ScotLR 2_37 (29 May 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0037.html Cite as: [1866] ScotLR 2_37, [1866] SLR 2_37 |
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Page: 37↓
An action having been dismissed in respect of the pursuer's failure to sist a mandatory, he was reponed on payment of a sum of expenses. Having failed to pay these expenses, the action was again dismissed, and a note to be again reponed was refused.
On 1st March 1866, the Lord Ordinary, on the motion of the defenders, and in respect of the pursuer's failure to sist a sufficient mandatory, and in respect of no appearance being made on his behalf, dismissed this action, with expenses.
The pursuer presented a reponing note, and on 13th March 1866 the Court remitted to the Lord Ordinary to repone him on such terms as to his Lordship should seem proper.
On 20th March 1866, the Lord Ordinary having heard counsel, reponed the pursuer on payment to the defenders of the sum of four guineas.
On 15th May 1866, the Lord Ordinary, in respect of the non-payment of the sum upon which the pursuer was allowed to be reponed, and his failure to appear by himself or counsel at the calling, of new dismiss the action, with expenses.
The pursuer then presented a second reponing note.
Page: 38↓
Mair, for him, argued that a second reponing note was not incompetent. A third one had been granted in Mather v. Smith, 28th Nov. 1858, 21 D. 24.
W. M. Thomson, for the defenders, argued that the note should be refused, because the delay was inexcusable. On 12th April the defenders' agent had written to the pursuer's agents, asking whether he would send a receipt for the expenses found due. No answer was returned, and on 12th May the case was again enrolled for decree. The pursuer did not attend to explain the delay in any way, and the action was dismissed a second time. In these circumstances, the pursuer should not be again reponed.
Mair stated that after the decree had been pronounced, the expenses had been tendered to the defenders' agent and declined.
The Lord President—In Mather's case the failure was to find caution, and the delay was explained, there having been an objection to the bond of caution offered. I think the procedure adopted here ought not to receive countenance. The Court went very far into the case of Mather, and I am not disposed to regard that case as a precedent. But in it there was an explanation. Here there is none, but there was no appearance before the Lord Ordinary. The offer afterwards made was not one which the defenders were bound to accept, because the expense of obtaining the decree was not tendered.
The reclaiming note was refused with additional expenses.
Solicitors: Agents for Pursuer— R. & R. H. Arthur, S.S.C.
Agents for Defenders— John Ross, S.S.C.
