M'Gibbon v. Thomson

Circumstances in which the Corust refused to repone a pursuer who had failed to appear at a diet appointed by a Sheriff-Substitute

It was stated that it was owing to the illness of the pursuer's agent, and the neglect of the clerk in his master's absence, that there had been a failure to attend.

Section 19 of the Sheriff Courts Act 1876 enacts—“It shall not be competent of consent of parties to prorogate the time for complying with any statutory enactment or order of the Sheriff, whether with reference to the making up and closing of the record, appointing a diet of proof, diet of debate, or otherwise.”

Section 20 enacts—“Where in any defended action one of the parties fails to appear by himself or his agent at a diet of proof, diet of debate, or other, diet in the cause, it shall be in the power of the Sheriff to proceed in his absence, and unless a sufficient reason appear to the contrary, he shall, whether a motion to that effect is made or not, pronounce decree as libelled, or of absolvitor (as the case may require), with expenses; or if all parties fail to appear, he shall, unless a sufficient reason appear to the contrary, dismiss the action.”

It has been represented to us that the failure to attend here arose from the fact that the defender's procurator was confined by illness, and his clerk neglected to observe that the diet had been fixed for the 23d May. That is the same thing as if the procurator had himself been the guilty party. And does that not amount to negligence and fault ? It is what was intended to be provided against by the introduction of these stringent clauses into this Act of Parliament.