Scottish Court of Session Decisions

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Cite as: [1835] CA 13_1034

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SCOTTISH_Shaw_Court_of_Session

Page: 1034↓

Wallace

v.

Hume No. 316.

Court of Session

2d Division

Bill-Chamber

July 3 1835

Ld. Cockburn. T., Lord Medwyn, Lord Justice-Clerk, Lord Meadowbank, Lord Glenlee

John Wallace, Suspender.— B. R. Bell. Alexander Hume, Charger.— Lothian.

Subject_Sheriff's Small Debt Act—Jurisdiction.—

A summons was raised under the Sheriff's Small Debt Act for payment of a sum stated to be due per account; the execution bore that a copy of the account was served with the summons, but no mention of it was made in the citation annexed to the copy of the summons served; the Court passed a bill of suspension of the decree.

It is provided by the 10th Geo. IV. c. 55, § 3, that all causes tried under that statute shall proceed “upon summons or complaint, agreeably to the form in schedule A subjoined to the act, stating shortly the origin of the debt or ground of action,” &c. “and a copy of the said summons or complaint with the citation annexed, and also a copy of the account, if any, shall be served at the same time by the Sheriff's officer on the defender, personally, or at his dwelling-place.”

The schedule referred to contains, 1st, the form of the summons, of which the will concludes thus: “requiring you also to deliver to the defender a copy of any account pursued for, and that ye cite witnesses and havers for both parties to compear,” &c.; and, 2d, the form of citation, which is of the following tenor:—

“E. F., defender, above designed, you are hereby summoned to appear and answer before the Sheriff, in the matter, and at the time and place, and under the certification set forth in the above copy of the summons or complaint against you. This notice ^† served upon the day of by me, J. T., Sheriff-Officer.”

_________________ Footnote _________________

^† To this part of the act there is this foot-note:—” If there is an account, the Officer must serve a copy of it along with the copy of the summons or complaint, and add here, ‘with a copy of the account.’ ”

The schedule contains, 3dly, a form for the execution with a similar notandum, requiring the officer, if there is an account, to serve a copy of it along with the summons, and add to his return of execution the words, “and a copy of the account.”

By § 18, it is enacted, “That no decree given by any sheriff in any cause or prosecution raised under the authority of this act, where the sheriff shall not have ordered any pleadings, arguments, minutes, or evidence to be reduced to writing, shall be subject to advocation, suspension, or appeal, or any other form of review or stay of execution, other than herein before provided, either on the merits or on account of any omission in the proceedings, or of any irregularity or informality, or on any ground or reason whatever, excepting only an appeal on the ground of corruption or malice and oppression on the part of the sheriff,” &c.

In July, 1834, the charger, Hume, raised a summons in the Sheriff's Small Debt Court of Orkney against the suspender, Wallace, setting forth that he was owing him the sum of £3, 7s. 8d., as per account. In the citation annexed to the copy of the summons produced by Wallace as that served on him, no mention was made of a copy of the account having been served along with the summons. The execution of citation, however, bore that a copy of the account had been served. The Sheriff having decerned against Wallace, he presented a bill of suspension, in which, on the averment that no copy of the account was served with the summons, or, at all events, that no mention thereof was made in the citation, he contended, that the provisions of the act not having been complied with, the judgment was not protected from suspension. ¹ The charger answered, that a copy of the account was served in proper form, and that the execution was sufficient evidence of the fact.

The Lord Ordinary refused the bill, adding this note. ^*

Wallace then presented a second bill, and at the same time instituted a reduction of the execution and decree. The Lord Ordinary reported it along with the answers, adding the note subjoined. ^†

_________________ Footnote _________________

¹ Brown v. Richmond, 16th February, 1833 (ante, XI. 407).

^* “The only averment on which the suspension can be rested—viz. that no copy of the account was served on the suspender, is refuted partly by his own admission, and utterly by the execution of the messenger.”

^† “The Lord Ordinary reports this case, partly because it concerns the practical administration of a statute as to which it is very desirable that the rules should be authoritatively fixed, and partly because the suspender, who is on the Poor's Roll, Submits that he ought to be allowed to have the opinion of the Court as speedily as possible.

“There are only two particulars in which this bill differs from the first one, 1. A reduction has been instituted of the execution and decree; 2., It is now stated that the citation given to the suspender, which is said to be produced, does not bear that a copy of the account was served upon him. It is not supposed that these circumstances are of much importance in a suspension. The suspender's remedy, under the reduction, will be reserved to him; and though the paper produced be assumed to be the copy of the citation left for the defender, and says nothing as to any account, it is contradicted by the execution, which bears that a copy of the account was served.”

Lord Medwyn.—This differs from the case of Brown. There a claim was made upon an account, and, as there was no statement either in the citation or the execution of a copy of the account having been served, the law was evidently not complied with. Here it is admitted that an account, in itself unobjectionable, was served at the proper time, and there is evidence of this in the messenger's execution. As to the service of the account not being mentioned in the citation, this is not required by the act, except in so far that it provides that the summons shall be in the form of the schedule annexed, but the enactment in the 18th section, in reference to omissions and informalities, is positive. There is no provision, as is sometimes the case in similar circumstances, that the form of citation annexed to the act shall be held as part of it. I am for refusing the bill.

Lord Justice-Clerk.—The view just taken is adverse to the decision in Brown's case. In conformity with the grounds of that decision you must show that the party has been correctly brought into Court. We there went on the ground that, as a new power had been given to sheriffs by a particular statute, we could do nothing but give effect to its provisions. As the summary proceeding under this act is contrary to the common law every thing must be correct according to the statute. Here I cannot think that the party has been competently brought into Court in terms of the statute.

Lord Meadowbank.—I am for following out the case of Brown. As the result of that case I understand, that, unless a party be brought into Court in the manner prescribed by the statute, he cannot be held to be properly or competently before the Court.

Lord Glenlee.—I concur.

The Court accordingly instructed the Lord Ordinary to pass the bill.

Solicitors: John Ross, S S. C.— William murray, S.S.C.—Agents.

SS 13 SS 1034 1835