Forrest v Dunlop

Judgment Date15 October 1875
Docket NumberNo. 6.
Date15 October 1875
CourtCourt of Session
Court of Session
2d Division

Ld. Curriehill. I., Lord Justice-Clerk, Lord Neaves, Lord Ormidale, Lord Gifford.

No. 6.

Process—Court of Session Act, 1868, sec. 26—Decree by default—Res judicata.—

A decree of absolvitor upon the pursuer's failure to deliver printed proofs of the record in terms of sec. 26 of the Court of Session Act, 1868, is a decree in foro, and, so long as it subsists, will exclude a new action upon the same grounds.

On 30th November 1874 Forrest raised an action of damages against Dunlop for slander, which was called before Lord Young, Ordinary. The defender entered appearance and lodged defences; and on 8th January Lord Young, in respect of the failure of the pursuer to deliver two printer's proofs of the record, in terms of the Court of Session Act, 1868,* and no appearance being then made for the pursuer, assoilzied the defender from the conclusions of the action, and found the defender entitled to expenses.

The pursuer did not reclaim, but before the reclaiming days had expired raised the present action before Lord Curriehill, Ordinary, precisely in terms of the former action.

The defender, founding on the decree of absolvitor in the former action, which had been extracted and a charge for the taxed amount of expenses given thereon, pleaded res judicata.

The Lord Ordinary pronounced the following interlocutor:—‘Sustains

the defender's plea of res judicata, assoilzies the defender from the action, and finds the pursuer liable in expenses,’ &c.*

The pursuer reclaimed.

Argued for him;—There could be no res judicata unless the Court applied its mind to the case.1

Lord Justice-Clerk.—The question is too clear for doubt. A decree in absence is not a nonentity. It will receive effect as long as it stands, though it may be brought under review by reduction or suspension. But a decree by default is a decree in foro. It may be taken out of the way by reclaiming note, and in the event of the reclaiming days being allowed to expire through inadvertence, a remedy is provided by the 16th section of the Act 48 Geo. III. c. 151. It is also open to the party to bring a reduction of the decree on the ground that it was obtained through inadvertence, in which case the Court, although it will require a strong statement of facts to support such an application, has the power to award substantial justice. But that is not the question here. It is whether, after decree of absolvitor has been pronounced and extracted, it can...

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