person attending the funeral of any person who shall die and be buried within the parish, or going to or returning from such funeral," shall be exempt "at any toll-bar within the same parish." If it had been intended by the Burials Act to make an exemption of the scope for which the defr. contended, a large part of the section founded on would be meaningless. Before this section could come into operation a "procession" must be constituted, of which the hearse forms a part. Further, the procession must be on its way, not to the place where the body is, but to the place of interment. None of these conditions existed in the present case.

The Sheriff was of opinion, without any hesitation, that the view expressed by the pursuer was the correct view. Before the exemption in the 22nd section of the Burials Act could apply, it seemed to be essential that funeral procession should have been constituted. A funeral procession does not begin until the mourners leave the house of the deceased. "He could not imagine any sense in which a hearse being taken from the stables to the house of the deceased, and while rattling along the streets like any ordinary carriage, was to be taken at that moment as part of a procession. Accordingly, for that reason alone, that this hearse, in going to Auchlunies on the day libelled, was liable in payment of toll. The former decision was this:-That a hearse coming back from a churchyard through this same toll-bar, after the mourners had dispersed, was not liable, but fell under the exemption. That decision was arrived at on the ground that, although in the great majority of cases the funeral procession ceased after the act of interment had been completed, this statute contemplated that once the procession had been formed there was to be an entire exemption from tolls of carriages engaged in it until they returned back to their respective destinations. Otherwise, the words "returning from" in this section has no meaning. It was a totally different thing to maintain that carriages going from their stables to the place at which the procession was to be formed were entitled to a similar exemption. Decree.

Act.-Prosser. Alt. A. E. Smith.


Sheriffs SMITH and WILSON.

D. M'INTOSH (W. LYON'S EXECUTOR) v. JOHN COLLIE.—December 3, 1872. Debts Recovery Act-Reponing Note-What constitutes a "Decree in Absence”? -The pursuer sued the defender for a debt under the Debts Recovery Act. Pleas were noted, and a diet fixed for the trial of the cause. At that diet the pursuer and his agent failed to appear. The following interlocutor was pronounced, "In respect the pursuer has failed to appear to lead his proof, assoilzies the defender, and finds him entitled to £1, 16s. of expenses, and decerns therefor." This decree was extracted, and a charge of payment given. The pursuer then took out a reponing note, and objection was taken by the defender to its competency. The following interlocutors were pronounced :

"Aberdeen, 22nd November 1872.-Having heard parties' procurators, dismisses the reponing note as incompetent and appoints the consigned money to be paid over to the defender. J. DOVE WILSON.

"Note. The decree against which the pursuer asks to be reponed was not a decree in absence, it was a decree pronounced after issue had been joined by defences having been minuted, and in consequence of the pursuer's failing to lead proof. It was therefore a decree by default, and the pursuer's remedy, if he felt aggrieved, was to appeal, when he would have been reponed on such terms as the Sheriff thought right. The present proceedings are taken as if it was against a simple decree in absence, and they are directed to the S.-S. whose jurisdiction in the matter is at an end. If the S.-S. had had any jurisdiction to reconsider the decree, the reponing note would probably have been a sufficiently competent mode of bringing the matter before him, but the Act of 1853 incidentally took

away the power of the S.-S. to recal decrees by default, and in practice appeals against such decrees are always disposed of by the Sheriff. J. D. W." "Edinburgh, 3rd December 1872.-The Sheriff having considered the appeal, alters the judgment of the S.-S.: Finds that the decree against which the pursuer asks to be reponed was pronounced in absence of the pursuer within the meaning of the Statute 30 & 31 Vict. c. 96: sustains the competency of the reponing note: remits to the S.-S. to hear the cause in the manner provided by the said Act of Parliament. J. GUTHRIE SMITH.

"Note.-In the Ordinary Court a 'decree in absence' means a decree pronounced in a case in which no appearance has been entered for the defender (16 & 17 Vict. c. 80, s. 2). Every other decree is a decree in foro; but a decree in foro may be pronounced either causa cognita, or by default, and then the remedy is by appeal to the Sheriff, who repones the party in default on such terms as may appear just.

"In small debt cases however this mode of redress is incompetent. There is no appeal from the judge of the first instance, and the technical distinction between decrees in absence, in foro, and by default is not recognised.

"The Statute contemplates that suitors will conduct their own cases themselves, and that in general the action will be heard and determined at a single diet, but whether or not the case be continued to another diet, it is assumed that the party will always be personally present; and if decree is pronounced in his absence, the remedy is a reponing note, which operates like a sist of execution till the case is fully heard and determined on the merits.

"This, it is said, shall be competent where absolvitor has passed in absence of the pursuer or prosecutor.' It is contended that these words mean where the party has failed to attend at the first calling of the cause: 'citatus eo die non respondisset.' But the Sheriff is of opinion that the words may receive, and (keeping in view the specialty that there is no other way of restoring a party against a decree by default) ought to receive a much wider construction. appears to him that they were intended to be read, not in a technical but in a popular sense. They simply mean 'when the pursuer was not present,' and. consequently they cover the case of a party being present at the first hearing, but failing to attend the adjournment.


"The opposite construction would be attended with grave consequences for litigants in the Small Debt Court. A man may be prevented from attending personally by the purest accident. He cannot avail himself of the services of a procurator. Decree may go out against him without his defence being ever stated, and yet there would be no possible way of getting the matter put right.

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If this is the meaning of the Small Debt Act, the same construction falls to be applied to the Debts Recovery Act, because section 7 expressly provides that a pursuer against whom decree of absolvitor has passed in absence may be reponed in the same manner, and under the same conditions as those provided in the 16th section of the Small Debt Act.' J. G. S." Act.-Alex. E. Smith.Alt.-John Thomson.


Sheriff's BELL and SMITH.


Sheriff Court Act, 16 & 17 Vict. c. 80-Notice of Appearance-Appeal-Competency. This was an action for debt. The defender did not lodge any notice of appearance as required by the 3rd section of the Sheriff Court Act, but when the case was called on the ordinary Court day, before the Sheriff Substitute, the defender appeared personally in court, along with an agent, and craved to be heard. The pursuer's agent objected to his being heard, in respect he had

not lodged any notice of appearance, and moved for decree. The defender's agent thereupon stated that it was owing to ignorance on the part of the defender, who resided in a distant part of the country, that he had not instructed a notice of appearance to be lodged, but that he now tendered a notice of appearance, and craved the authority of the Court for its being received. The pursuer's agent objected that the period prescribed by the Act for lodging a notice of appearance had elapsed, and contended that it could not now be received, either by authority of the Court or otherwise. He further contended that the pursuer was entitled to decree as craved, and that the defender could only get redress, if he was entitled to redress, by being afterwards reponed against the decree in terms of the provisions to that effect. The Sheriff-Substitute thereupon pronounced the following interlocutor, viz. :—

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Elgin, 10th October 1872.-The pursuer's procurator having moved for decree, in terms of the conclusions of the summons, and the defender having appeared personally, with Mr Stewart as his agent, and moved for leave to lodge a notice of compearance as now tendered, and the pursuer having objected to the motion of the defender, and insisted in his own motion, and the S.-S. having heard parties, hoc statu refuses the motion of the pursuer, and allows the said notice to be received on payment of 5s. sterling on account of the pursuer's expenses, and the said notice having been thereupon lodged accordingly, and the S.-S. having thereafter heard parties' procurators, on the grounds of action and nature of the defence, appoints the pursuer to lodge

a condescendence and the defender his defences in terms of the Statute.


No appeal was taken against this interlocutor, but the pursuer's agent refused to receive the 5s., and it was consigned in the hands of the Clerk of Court. Condescendence and defences were afterwards lodged. In the condescendence a plea-in-law on behalf of the pursuer was stated in the following terms, viz. :

"The notice of appearance in this action not having been lodged within the statutory period, viz., within six days after the execution of the summons, the pursuer is entitled to decree in terms of the conclusions of the summons."

The Sheriff-Substitute appointed the parties to be heard upon this plea, and thereafter pronounced the following interlocutor, viz. :—

"Elgin, 26th November 1872.-The Sheriff-Substitute having heard parties' procurators on the plea referred to in the foregoing interlocutor of 14th November current, repels the same, and quoad ultra renews the appointment contained in the foregoing interlocutor of 8th November current.


"Note.-The Sheriff-Substitute, in cases like the present, has for several years been in the practice, when notice of appearance has not been lodged within the time directed by the Statute, of admitting the notice, on motion made at the bar to that effect, on payment of such reasonable expenses as might be occasioned by the omission to lodge it at the proper time. He looks upon the terms of the Statute as being merely directory in this matter, and he conceives that every Court must have inherent power to rectify, on an equitable footing, matters of mere subordinate detail, such as the matter in question, where there can be no just interest to the contrary, where there is no prohibition against doing so, as in s. 56 of the A. S. 10th July, 1839, and where strict adherence to the views contended for by the pursuer would involve the contradiction and absurdity of pronouncing judgment as in absence against a party personally present and claiming to be heard. This power is distinctly implied in the 64th section of the same Act of Sederunt, and it seems to be equally distinctly both implied and conferred as regards points such as the present, in the 6th section of the Sheriff Court Act of 1853.

"In arriving at this result, the views of the Sheriff-Substitute are in accordance with those given effect to in the Sheriff Court at Perth, in the case of Stiven v. Carnegie, 1865, reported in the Scottish Law Magazine, vol. iv. p. 115.

The Sheriff-Substitute also concurs in the views expressed on the same subject by Mr. Dove Wilson in his work on "Sheriff Court Practice," p. 61. There is, however, an opinion given in the case just referred to of Stiven v. Carnegie, in which, with all deference to the respected Judge who expressed it, the present writer feels unable to concur. This opinion is to the effect that the 6th section of the Sheriff Court Act of 1853 does not apply to a point such as the present. Now, it is difficult to see that any written step of a process, or any Court document, can be held not to be included under such comprehensive words as 'condescendence or defences or other paper.' The words 'condescendence or defences,' which are placed in the foreground, seem to be mentioned merely as the most important papers present to the mind of the framer of the clause, and the words or other paper,' seem to be intended to include everything else coming under that description, where there is no prohibition. There seems to be no reason why these words should not be so meant and construed, in a department of the Act which is simply directory and administrative, and which, as such, should receive the broadest and most liberal interpretation.

"The words 'at latest' in the commencement of section 3 of the Sheriff Court Act have been strongly founded on in the argument for the pursuer. But it will be observed that precisely similar words are repeated a few lines further on, as to the hearing and adjournment, which is directed to be 'not later' than so many days, and other similar directions are repeated in section 4. In practice it is found almost impossible, in all cases, to work up in point of time to the directions of these sections, but the Sheriff-Substitute has never heard it generally said, or maintained, that any omission or failure in the exact observance of them is fatal to a cause, or an irremediable bar to further procedure. The instruction given by the Supreme Court, in their interlocutor in the case of Kessack v. Garden, 27th Feb. 1869, 7 Macph., p. 588, seems rather to imply that such failure is not necessarily irremediable, and that the Sheriff Court holds power within itself to modify or adjust its proceedings in these respects, so far as may be fair and reasonable. If, however, the pursuer is right in what is contended for on her behalf, the one result seems necessarily to involve the other, and the Sheriff-Substitute would be afraid even to speculate as to how many Courts or how many causes might be affected by it.

"The present Sheriff-Substitute was not aware until the debate from which the present avizandum was made, that a somewhat similar point was formerly under the consideration of the Sheriff of this Sheriffdom, in the case of M'Connachie v. M'Donald, in the year 1860. But in that case the notice seems to have been lodged with and received by the Clerk of Court, without any leave of the Court, and the course of procedure was so substantially different from what has been followed in the present case, that the Sheriff-Substitute would have difficulty in applying it, even if he had the power, as he does not think he has, to alter the effect of his previous interlocutor of the 10th ult.

D. M. S."

This interlocutor was appealed, and the Sheriff pronounced the following interlocutor, viz. :—

"Edinburgh, 4th January 1873.--The Sheriff dismisses the appeal as incompetent, and finds the appellant liable in the expenses thereby occasioned, of which he allows an account to be given in, and taxed, allowing extract, and decerns for the same ad interim.


Note.-On seeing it stated that he had disposed of a previous case on appeal, the Sheriff thought it necessary to send for it, M'Connachie v. M'Donald. Having now seen it, he finds that the question there arose under an appeal from an interlocutor repelling three dilatory defences. Here there is no defence of any kind dealt with. And the appeal is clearly incompetent under the Statute.

Act.-Anderson. Alt.-Stewart.

B. R. B."




Res Judicata Filiation and Aliment-Seduction.-Pursuer sued defender for damages for seduction. She averred acquaintance between her and defender, and courtship by him, resulting in intercourse on occasions in November and December 1870. She had previously brought an action of filiation and aliment against him, libelling upon the same acts of intercourse. In that action she had failed upon the proof.

Defender pleaded res judicata. He argued that the question whether the intercourse averred had taken place had already been tried and decided, and could not be again raised by pursuer.

The S.-S. sustained the plea, and dismissed the action with expenses, adding to his interlocutor the following

"Note.-Though strongly impressed with the inexpediency and danger of sustaining the present action after the pursuer's failure in the action of filiation and aliment, the S.-S. was at first inclined to think that there were technical difficulties in the way of his holding the decree of absolvitor in the latter action a bar to the present proceeding, but on more mature consideration he has come to be satisfied that the defender's plea is well founded.

"In order to succeed in her present action, it is clear that the pursuer must prove two things, viz. (1) that the defender had carnal connexion with her in the months of October and November 1870 and January 1871; and (2) that he obtained her favours dolose. Now, as it seems to the S.-S. the former of these points has been decided against her in the previous action. True, the finding of the Court was only that the defender had not been proved to be the father of the child to which the pursuer gave birth on 30th August 1871, but that finding really involved this other finding, that carnal connexion had not taken place between the parties as libelled in the summons on the months of October, November, or December 1870, for had the Court been satisfied that connexion had taken place in any of these months, it cannot be doubted for a moment that the result of the case would have been different from what it actually was. The point having been thus necessarily considered and substantially determined in a competent process, in which the pursuer and defender were the parties, the pursuer is, it is thought, barred by the exceptio rei judicata from now reopening


J. C."

The pursuer appealed, and the Sheriff pronounced an interlocutor, in which he" recals the interlocutor appealed against, repels the defender's plea of res judicata, and remits the case back to the S.-S. to proceed further therewith as may be just. FRED. L. MAITLAND HERIOT.

"Note. To entitle a defender to plead res judicata successfully, the two actions must not only have been between the same parties, or their executors, but must both have proceeded on the same media concludendi. The pursuer formerly brought an action of filiation and aliment against this defender. The ground of action in that case was that he was the father of an illegitimate child to which she gave birth on or about 30th August 1871. It has been held in that case that the pursuer failed to prove that the defender was the father of the said child, and he was therefore assoilzied. The pursuer now brings the present action of damages for seduction, not on the ground that the defender is the father of the said child, but on the ground that the defender had led her to believe he was courting her, that he had gained her affections, had succeeded in forcing her to yield to his embraces, and that he had seduced her.

"The media concludendi are different. The one action has reference to the maintenance of a child, the other to injury to the character of a woman. The one proceeds on the ground that the defender is the father of her child, the

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