JAFFRAY v CARSWELL (Court of Session)

Jaffray brought a suspension of a charge on this decree, when the Lord Ordinary pronounced this interlocutor, adding a note:

‘The Lord Ordinary, having considered the bill and answers, remits to the Sheriff to repone the suspender, on his paying to the respondent the sum of L.3, 3s. of expenses of raising diligence and of answering the bill, and consigning with the clerk the sum due under the act of Sederunt, and decerns.’

Jaffray reclaimed, and pleaded —That by the Act of Sederunt referred to, two remedies were provided in regard to decrees in absence, viz. 1. That in the case of a decree in absence, which has been extracted, the whole expenses should be consigned before reponing; and, 2. That in the case of an unextracted decree, the intention of the act was to allow the same to be recalled, on consignation of the expense of such decree, that is, of the pursuer's agent's fee for attending at taking out the decree, amounting to 3s.

That the present case was regulated by the first of these alternative provisions, and it had been so understood in all the other counties in Scotland. In the only analogous case which had occurred in the Court of Session, that of Eyre v. Skinner's Trustees, 22d Dec. 1825, S. & D. iv. 332, the Court reponed the defenders against a decree in absence, on producing defences and paying the expenses incurred subsequent to the summons, their Lordships holding, that as the summons remained an useful and available document to the pursuer, the defender could not be required to pay the expense of it.

The Court expressed an opinion, that the course followed had been irregular, and that it was incompetent for the Sheriff-clerk to refuse receiving the petition, but should have left the matter to the determination of the Sheriff.