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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Kidd v. Manson [1882] ScotLR 19_603 (18 May 1882)
URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0603.html
Cite as: [1882] SLR 19_603, [1882] ScotLR 19_603

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SCOTTISH_SLR_Court_of_Session

Page: 603↓

Court of Session Inner House First Division.

[Sheriff of Caithness-shire.

Thursday, May 18. 1882.

19 SLR 603

M'Kidd

v.

Manson.

Subject_1Sheriff
Subject_2Process
Subject_3Wakening
Subject_4Effect of no Procedure within Year and Day from Diet of Compearance on a Summons.
Facts:

Where a petition in a Sheriff Court was served, but no further procedure took place for more than a year and a day after the diet of compearance, held that the cause had never come into existence so as to be capable of being wakened.

Headnote:

James M'Kidd, farmer, Thurso, brought an action concluding for a sum of £65, being the sum contained in a bill against George Manson, farmer and builder, Thurso, the summons in which was served on the defender on 22d May 1880. The induciæ were seven days, and the last diet of compearance was therefore 29th May. No defences were lodged, and no step whatever was taken by the pursuer till 7th June 1881, when a minute was lodged for him setting forth that the summons had been served on the defender personally, that no appearance had been entered, and that no procedure had been taken since the last-mentioned date, “so that the action has fallen asleep,” that the pursuer wished the action wakened, and craved the Sheriff to direct intimation

Page: 604↓

of the minute to be made to the defender and on the walls of Court. The Sheriff-Substitute, on 17th June, after intimation as craved, held the cause wakened. The defender lodged defences denying liability, and stating, inter alia—“The petition was not called within a year and day of its execution;” and pleaded—“The petition not having been called within a year and day of its execution could not thereafter be called, and it was incompetent to revive the action.” Thereafter the Sheriff-Substitute allowed a proof of certain other articles in the defender's statement, and on appeal to him the Sheriff adhered, adding this note—“The dicta in Aitken v. Dick, 7th July 1863, 1 Macph. 1038, support the pursuer's contention that on execution this case became a depending action, and so could be competently wakened.” Thereafter, after sundry procedure with regard to the competency of proof in the cause, the Sheriff-Substitute decerned against the defender in terms of the conclusions of the summons.

The defender appealed to the Court of Session, and argued—The cause was dead in consequence of its not having been called within year and day from 29th May, and could not be wakened. That was the rule as to the Court of Session at common law— Drummond, July 1708, M. 11,980; 2 Shand's Practice, 549; Ersk. Inst. iv. 1, 8. It was also the rule under the Act of Sederunt of 8th July 1831, sec. 3. The same was the rule in Sheriff Court practice—Wilson's Sheriff Court Practice, 113; M'Glashan's Sheriff Court Practice, secs. 1561 and 1562; Maclaurin's Sheriff Court Practice, 172, sec. 15; Sheriff Court Act 1853; Cumming, 12 Shaw 1261.

Argued for respondent—This was an “action” in the sense of the Sheriff Court Act of 1876 (39 and 40 Vict. c. 70), sec. 49, and it could therefore be competently wakened.

 Judgment:

At advising—

Lord President—I do not think that there is any doubt that we must sustain this objection. It is a great pity that the case was allowed to go on after the objection was taken in the Sheriff Court, for the whole difficulty might have been got rid of by service of the action anew if the pursuer had seen his own interest at that time. The rule as to the effect of not calling a summons for year and day is, I think, perfectly fixed both in this Court and in the Sheriff Court. It is not disputed that it is fixed in this Court, and has been so from an early period. The rule is that after a summons is served, if it is not called within year and day from the last diet of compearance, it is at an end. It has no longer any existence, and the pursuer must bring a new action. A doubt has been raised whether the same rule exists in the Sheriff Court. The presumption is that this rule being a rule of practice equally applicable to all Courts, it applies to the Sheriff Court as well as to the Supreme Court, and in looking at the authorities we find that it is laid down by them without any distinction being made simply as a general rule of practice. Then if we look at the books of writers on practice in the Sheriff Courts, we find it laid down without hesitation by all these authorities. No doubt new regulations are from time to time introduced in the Sheriff Courts which are applicable to the raising and conducting of actions, and among other things rules as to the calling of and appearance in actions have been introduced, but Mr M'Glashan states the rules thus (sec. 1561):—“Unless a summons was regularly executed within year and day of its date, and called within year and day of the date of compearance, the instance perished, and before the pursuer could again insist in his claim he must have brought a new action.” That states the rule independent of all statute law. He then goes on:—“This rule appears applicable to the new form of process, though the mode of calling and entering appearance has been varied.” In the next section (sec. 1562) we find what he means by the “new form of process,” for he says—“The summons having been called (now enrolled) the same consequences do not result from delay, for the calling being considered a judicial step there is a depending process, which, although allowed to fall asleep, might formerly at any time within the years of prescription have been awakened, but will now be regulated by the limitation of three and six months and revival within the first-mentioned period,” referring in that last sentence to the rules as to awakening which are contained in the Sheriff Court Act of 1853. The only other point that need be attended to is the argument which the respondent's counsel based on the language of the Sheriff Court Act of 1876, particularly of the 49th section of that Act. All that is necessary to be said upon that Act is, that it did not intend to introduce a new rule in this matter, and sec. 49 applies entirely to the mode of wakening causes, and the period at which they may be wakened, and not to the question when an action comes into existence and becomes a living process capable of being wakened. I can only say again that I regret that the case was allowed to go on after this objection was taken.

Lords Deas, Mure, and Shand concurred.

The Court recalled the whole interlocutors in the Court below, sustained the first plea-in-law for the defender (appellant), and dismissed the action.

 Counsel:

Counsel for Petitioner— Rhind. Agents— Begg & Murray, Solicitors.

Counsel for Respondent— Lorimer. Agents— Hamilton, Kinnear, & Beatson, W.S.

 1882

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URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0603.html