Scottish Court of Session Decisions

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Cite as: [1866] ScotLR 2_156, [1866] SLR 2_156

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SCOTTISH_SLR_Court_of_Session

Page: 156↓

Court of Session Inner House First Division.

2 SLR 156

Dewar

v.

Pearson

( ante, vol. i. p. 217).

Subject_1Appeal to House of Lords
Subject_2Interim Execution.

Facts:

Circumstances in which, a Sheriff Court action having been advocated, and remitted by this Court to the Sheriff simpliciter, an application for interim execution pending appeal refused, except as regarded the expenses in the advocation.

Headnote:

This was a petition for interim execution pending appeal to the House of Lords. In an action before the Sheriff Court of Fifeshire, against Pearson & Jackson, and the partners of that firm, the Sheriff decerned against the defenders for the sum of £367, 11s. 6d., being salary claimed by the pursuer on account of services rendered by him to the firm of Pearson & Jackson, for the six years preceding 18th June 1852, and for expenses. The defender Pearson advocated, and the Court, after hearing counsel on the first and secoud pleas for him, which had reference to a sum of £180, part of the said sum of £367, 11s. 6d., and to which prescription applied, a third plea not being insisted on, repelled the reasons of advocation with expenses, and remitted the case simpliciter to the Sheriff. The pursuer now applied for interim execution, pending appeal, of the decree remitting simpliciter in order to his getting extract upon caution for £180, and for expenses. Answers were lodged by the defender, in which it was pleaded that the prayer of the petition was not warranted by section 17 of the Act 43 Geo. III. c. 151, and that generally there was no ground in equity or expediency for allowing interim execution in the present case.

Judgment:

The Lord President—The £180 is part of the sum of £367 which the Sheriff has given decree for; that is, the Sheriff has pronounced judgment, finding “that the sum due to the pursuer by the defenders amounts to £367, 11s. 6d. sterling, salvo justo calculo, for which decerns against the defenders: Finds the defenders also liable in expenses of process, but subject to modification: Allows an account thereof to be given in, and remits to the auditor to tax the same when lodged, and to report.” Then there is an advocation, and the case comes before us, and our interlocutor is—“The Lords having heard counsel for the parties on the first and second additional pleas-in-law lodged for the advocator in this Court, and no other pleas being insisted in, repel the reasons of advocation, remit the cause simpliciter to the Sheriff, and decern: Find the advocator liable in expenses to the respondent in this Court: Allow an account thereof to be given in, and remit to the auditor to tax the same, and to report.” And now there is an application for interim execution pending

Page: 157↓

appeal; and that is asked in this way, that we shall break in on the sum of £367, and allow extract to be got on caution for a certain portion of it, and the rest of the case which is not disposed of by our interlocutor is still to be matter of litigation in the Sheriff Court. I do not at present mean to express an opinion as to the competency of a petition for interim execution in the general case where there has been a decerniture in the Sheriff Court for a specific sum, and we have made a remit simpliciter to the Sheriff. But in this case, which involves complications of which neither party has said what the effect would be, I think it better to refuse to grant this interim execution, which would just lead to further litigation, unless it is limited to the expenses in this Court.

Lord Curriehill—I am of the same opinion. At common law the party is not entitled to the remedy he here seeks. It is only by Act of Parliament, which gives power to the Court to regulate all matters of execution according to its sound discretion.

Lord Deas—I concur. It is impossible not to see that the party who is objecting to the interim execution may be getting advantages which the statute did not contemplate. At the same time I think the safest way is not to grant the petition. If this had been a case of decerniture by the Sheriff, and there then had been an advocation here of the Sheriff's decree, and we had then remitted to the Sheriff who had already decerned, I don't see any difference between that and the ordinary form of interlocutor advocating and decerning. Here there has been £367 decerned for by the Sheriff, and the party requires execution on finding caution for only a portion of that sum, which there is no way of separating without intricate calculation.

Lord Ardmillan concurred.

The petition was accordingly refused, except in regard to the expenses of the advocation, and the petitioner was found liable in ten guineas of modified expenses.

Counsel:

Counsel for Petitioner— Thoms, Agent— W. Officer, S.S.C.

Counsel for Respondent — Scott. Agent— D. Crawford, S.S.C.
1866