Scottish Court of Session Decisions

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Cite as: [1835] CA 13_1048

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SCOTTISH_Shaw_Court_of_Session

Page: 1048↓

Jaffray

v.

Carswell No. 326.

Court of Session

1st Division

July 7 1835

Ld. Cockburn. S.

William Jaffray, Junior,ss Suspender.— D. F. Hope— A. M'Neill. William Carswell, Charger.— Rutherfurd— Wilson.

Subject_Process—Sheiiff-Court A. S.—Reponing.—

After decree in absence was pronounced by a sheriff for the principal sum, and £1, 1s. 8d. of expenses, and, before, extract, the defender tendered defences, with a petition, to be reponed on consignation of 3s., which the sheriff-clerk, considering the consignation insufficient, refused to receive, and the decree was extracted—observed, that it was the sheriff, and not the sheriff-clerk, who ought to determine on the petition to be reponed, and a remit made to the sheriff to dispose of the petition, and to determine what sum of expenses should be consigned before reponing.

William Carswell, baker in Glasgow, obtained decree in absence before the Sheriff of Lanarkshire, against William Jaffray, Junior, accountant in Glasgow, for payment of a sum of £21, 15s. 6d., with £1, 1s. 8d. of expenses. On 15th April, 1835, being before extract, Jaffray tendered his defences along with a petition, craving to be reponed “on consignation of such small sum as will be sufficient to cover the pursuer's agent's account of expenses attending Court at taking the decree.” A sum of 3s. was offered to be consigned at the same time, and this appeared to be the sum required to be consigned, in similar cases, in the Burgh Court of Glasgow. The sheriff-clerk refused to accept of any consignation less than the whole expenses; and, after a delay of a month, Carswell extracted the decree, and raised letters of horning on it. Jaffray presented a bill of suspension of a charge, and pleaded, that it was only after a decree had been extracted that it was necessary to pay the whole expenses: that this was the practice in all sheriff-courts except Lanarkshire, acting under the Act of Sederunt, 12th November, 1825, and the practice of that sheriff-court ought to be corrected now: and that, as he had offered the proper consignation, ¹ he ought to have been reponed. The extract and subsequent diligence were therefore irregular, and the diligence should either be suspended, or a remit made to the sheriff to repone the suspender, and to find him entitled to the expenses of the suspension.

Carswell answered, that the Act of Sederunt had been correctly construed

_________________ Footnote _________________

¹ Eyre, Dec. 22, 1825 (ante, IV. 332).

by the sheriffclerk, and according to the established practice of that sheriff-court: that the amount of expenses contained in the decree was the proper sum to be consigned, ¹ but that, even if the clerk was, wrong, the suspender should have complained to the sheriff: ² and that, as the charger could not render his decree available without extracting it, he had been obliged to do so, and to raise diligence on it. He therefore ought to be found entitled to the expenses of the diligence, but he had no objection to a remit being made to the sheriff to repone the suspender on payment or consignation of such expenses as the Lord Ordinary should think proper.

The Lord Ordinary “remitted to the Sheriff to repone the suspender, on his paying to the respondent the sum of £3, 3s. of expenses of raising diligence and of answering the bill, and consigning with the clerk the sum clue under the act of sederunt, and decerned.” ^*

The suspender reclaimed.

Lord Balgray.—As soon as a dispute arose between the sheriff-clerk and the party regarding the proper amount to be consigned, the clerk should have reported the matter to the sheriff for his judgment.

Lord Gillies,—From the words of the Act of Sederunt, I think the question of repotting or not fell to be decided by the sheriff. It was for the sheriff to determine whether the conditions requisite for reponing had been complied with. But it would appear that this petition to be reponed was never laid before the sheriff at all. That was irregular; and I think, if even consignation of a single shilling was offered, it then became a matter for the sheriff, and not the sheriff-clerk, to determine, whether, the party should be reponed or not.

Lord President.—In this Court the clerk never takes it upon him to determine what consignation shall be made, in order to untitle a party to be reponed; that is always left for the Court to decide.

The Court pronounced this interlocutor:—Recall the interlocutor of the Lord Ordinary reclaimed against, and remit to his Lordship to remit the case to the sheriff, with power to take into consideration the petition of date 15th April, 1835, and to dispose thereof, and determine what sum of expenses

_________________ Footnote _________________

¹ Cowie, Nov. 18, 1828 (ante, VII. 23).

² Murray, Dec. 22, 1820 (ante, V. 183).

_________________ Footnote _________________

^* “ Note.—Since the clerk is said to have claimed too much, it was the duty of the suspender to have applied to the Sheriff, instead of obliging the charger to do diligence, and then attempting to take the opinion of this Court at once on the clerk's demand (see Murray, 22d Dec. 1826). What the sum to be consigned is, the Lord Ordinary, who does not know the table of fees for the county of Lanarkshire, cannot say, and, even though he could, he would not, because he thinks that this in a matter which, in the first instance, is peculiarly for the Sheriff, especially as the general practice of his Court is challenged, and the complaint is professed to be made on public grounds. The Lord Ordinary will only observe, that, when the suspender quotes the last part of section 2d of cap. 5, he stops at the word decree, whereas the clause directs consignation of the expense of the decree or procedure.

shall be consigned by the petitioner before being reponed; and with power, also, to the sheriff, to determine the matter of expenses in this Court between the parties.”

Solicitors: C. Fisher, S.S.C.— J. C. Reddie, W.S.—Agents.

SS 13 SS 1048 1835