Scottish Court of Session Decisions

On 15th January 1866 the Sheriff-Substitute of Lanarkshire at Airdrie assoilzied the respondent from the conclusions of conjoined petitions brought against him by the suspender and another, and found the respondent entitled to expenses. Warrant was also granted to the Clerk of Court to pay over to him a sum which had been consigned in the processes. The suspender and the other petitioner appealed against the interlocutor. The appeal, however, was dismissed by the Sheriff, who adhered to the Sheriff-Substitute's interlocutor. The Sheriff's interlocutor is dated 6th April 1866. The respondent having uplifted the consigned money obtained his account of expenses taxed, and upon 17th April 1866 (the suspender and the other petitioner not having lodged objections to the taxation) the Sheriff-Substitute approved of the auditor's report, and decerned against the suspender and the other petitioner for £29, 12s. 7d. An extract of the said decree was obtained by the respondent upon 21st April 1866. That extract began as follows:—“At Airdrie, the 15th day of January and 17th day of April, both in 1866, sitting in judgment, William Logie, Esq., Substitute of Sir Archibald Alison, Bart., advocate, Sheriff of the county of Lanark, in the conjoined actions, before the Sheriff Court of the said county, at the instance of,” &c. It contained a statement of the actions, and of the two interlocutors referred to, and ended as follows:—“Extracted by me, Sheriff-Clerk-Depute of Lanarkshire. Four words being deleted, and two marginal additions being made before subscription.—Thomas Clark, Sh-Clk-Dep. Written and collated by Thomas Clark, Junr., Dep. Signed 21st April 1866.”

Upon this extract decree the suspender and the other petitioner were upon 25th April 1866 charged to make payment of the expenses decerned for. The charge given to the suspender began as follows: — I, Thomas Twycross, sheriff — officer, by virtue of an extract decree of absolvitor from the Sheriff Court books of Lanarkshire, and warrant therein, dated at Airdrie, the 15th day of January and 17th day of April 1886, pronounced in favour of Henry M'Lachlan, after designed, in the conjoined actions before the Sheriff Court of said county, at the instance of,”—and concluded thus:—“Do hereby, in Her Majesty's name and authority, and in name and authority of the Sheriff of Lanarkshire, lawfully charge you, the said Robert Williamson, to make payment of the sum of £29, 12s. 7d. sterling of expenses of process, attour the sum of 8s. sterling as the expense of extracting said decree in said action, and of recording the same, conform to said extract decree and warrant, and that to the said Henry M'Lachlan, defender, within fifteen days next after the date of this my charge, under the pain of poinding and imprisonment, with certification. This I do upon the 25th day of April 1866, before Thomas M'Lachlan, residing in Coatbridge, witness.— T. Twycross, Sheriff-Officer.”

The suspender thereafter brought this note of suspension, to which the respondent was allowed to give in answers. The suspension was presented upon several grounds, which may be stated as follows:—“1st, That the extract decree was null, as it did not give the date of the judgment of the Sheriff-Depute as well as those of the Sheriff-Substitute upon which it proceeded; 2d, that the charge itself was null upon the same ground, and also, as not giving the date of the extract decree; and 3d, that the extract was not a legal warrant to charge, in respect it was issued before the time for appealing had expired.”

The Lord Ordinary on the Bills (Mure) refused the suspension, and found the suspender liable in expenses.

His Lordship in a note to his interlocutor explained the grounds of his judgment. The first objection and part of the second was held to have been decided by the case of Thomson v. M'Donnell, July 6, 1841, 3 D. 1167. With regard to the remaining part of the second objection, his Lordship said he had always understood that an extract decree bears the date at which the decree of which it professes to be an extract was pronounced, and the Personal Diligence Act did not require that a charge should specify any other date. With regard to the third objection, his Lordship said—“At the discussion before the Lord Ordinary it did not seem to be disputed on the part of the complainer that, if the provisions of the Act of Sederunt of 10th July 1839 were still in operation, there was no ground for the objection founded on the allegation that the extract was issued before proper time had been allowed to appeal. For the 109th section of that Act of Sederunt, which regulates the matter of the taxation of accounts and objections to auditor's reports, while it makes it competent for either party, within forty-eight hours after taxation, to lodge a note of specific objections to the taxation, at the same time expressly provides that no appeal shall be competent against any interlocutor dealing with such taxation ‘unless lodged within forty-eight hours of its date.’ Now, in the present case no specific objections were made to the auditor's report, which is dated 13th April 1866; and the forty-eight hours having expired without any objections having been lodged, the interlocutor of the 17th April was pronounced, approving of the report, and decerning for the expenses; and no appeal having been taken within the time prescribed by the Act of Sederunt, viz., forty-eight hours from the date of the interlocutor, the decree was, on

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the 21st of April, extracted in common form, and a charge given upon it on the 25th. In all these respects therefore the proceedings were in conformity with the regulations of the Act of Sederunt, and the usual practice.

“But it is maintained on the part of the complainer that the provisions of that Act of Sederunt, limiting the time for appealing against interlocutors dealing with the taxation of expenses, are no longer binding; because by section 16th of the 16 and 17 Vict. cap. 80, seven days are allowed to parties to appeal; and by the 51st section of the same Act the provisions of the Act of Sederunt of 1839 must be held to be repealed in order to let in and give effect to the provisions of the Sheriff Court Act in the matter of appeal.

The Lord Ordinary, after repeated consideration of the provisions of sections 16, 19, and 51 of that Act relied on by the complainer, is unable so to read those sections. One object of that statute confessedly was to restrict rather than to extend the right of appeal; and as the Lord Ordinary reads section 16 of the Act it makes no new provision as to what interlocutors are appealable, or as to the time within which appeals must be lodged, but rather leaves these matters subject to the restrictions in section 19, to be regulated by the then existing rules. For while it makes new regulations as to the manner in which appeals are to be entered and dealt with, it takes the same period of time as the Act of Sederunt of July 1839, section 98, as that within which an appeal must in the ordinary case be taken, viz., seven days, and the expression in section 16 relied on by the complainer, viz., any judgment ‘which, under this Act, may be brought under review of the Sheriff’ is, it is thought, used with reference to the restrictive provisions of the 19th section, and cannot be held by implication to extend the period for appealing against interlocutors dealing with the taxation of accounts to seven days, and so to make it necessary to decide that the provisions of the Act of Sederunt of 1839, by which alone these matters have since that date been regulated, must be held as repealed, in order to prolong discussions as to the taxation of accounts.”

Against this interlocutor the suspender reclaimed.