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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ledgerwood v. M'Kenna [1868] ScotLR 6_203 (18 December 1868)
URL: http://www.bailii.org/scot/cases/ScotCS/1868/06SLR0203.html
Cite as: [1868] ScotLR 6_203, [1868] SLR 6_203
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
v.
Facts:
Part 7 of the General Police Act 1852, amending the Nuisances Removal Act 1856, applies wherever the latter Act is called into operation, and is not dependent for its efficacy on adoption of the Act of 1862.
It is incompetent to sue in a Small Debt Court for the expenses found due in proceedings under the Nuisances Removal Act.
In October 1866 the defender, inspector of poor for the parish of Girvan, and prosecutor appointed by the Parochial Board under the Nuisances Removal Act 1866, obtained a decree under that Act from the Justices of Ayrshire against the pursuer, ordaining him to remove a certain nuisance from his premises, and finding him liable in expenses. A Small Debt action was raised for these expenses, the account sued for being in these terms, “1866, Oct. 31.—To sum of expenses due by the defender to the pursuer and contained in a finding or decree of the Justice of Peace Court at Girvan, pronounced of this date, in a petition and complaint at the instance of the pursuer against the defender, dated tenth October 1866, proceeding and founded upon The Nuisances Removal (Scotland) Act 1856, conform to said petition and complaint and finding or decree annexed thereto, herewith produced, &2,18s. 5d;” and a decree of the Justices was obtained therefor. The pursuer now sought to reduce these decrees. He maintained that the Justices had no power under the Nuisances Removal Act to award expenses, and that it was ultra vires of the Justices in the Small Debt Court to entertain a claim for expenses incurred in another suit. The defender
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maintained that all Judges possessing civil jurisdiction had power to award expenses; that the Nuisances Removal Act conferred such power on the Justices as it did on the Sheriff; and that at least the 447th section of the General Police Act, amending the Nuisances Removal Act, gave the power. In reply, the pursuer denied that any part of the General Police Act applied unless adopted, and the Act had not been adopted in Girvan. The Lord Ordinary (Kinloch) dismissed the action as incompetent, adding this note:—“On 31st October 1866 the defender, Mr M'Kenna, Inspector of Poor for the Parish of Girvan, obtained a decree under the Nuisances Removal (Scotland) Act from the Justices of Peace for Ayrshire against the pursuer Alexander Ledgerwood, ordaining him jto remove a certain accumulation of manure, and finding him liable in &2, 18s. 5d. of expenses.
“An extract of this decree, containing a warrant to charge was taken out, but no use was made of it. The course taken was to raise a Small Debt action before the Justice of Peace Court, and in this action to take decree for this sum of &2, 18s. 5d.
“These proceedings are now brought under reduction, but, as the Lord Ordinary thinks, incompetently so brought.
“1. It is said that under the original complaint, laid on the Nuisances Removal Act, the Justices had no power to award expenses. The Lord Ordinary thinks they had. It might be fairly held that they had, by virtue of a power inherent in all judicial tribunals. But the General Police Act (which contains at the close an amendment of the Nuisances Removal Act) directly gives the power by section 447, which places Justices of the Peace on the same footing with the Sheriff, who, under the Nuisances Act (sec. 44), was declared entitled to award expenses. This being so, the award is under the statute final.
“2. It is said that the extract of the decree was incompetently taken, the Justices having no power to enforce their judgment. This is probably true, but the extract was never used, but abandoned, and a reduction of it is unnecessary, and would serve no practical end.
“3. It is said that it was incompetent to bring an action for payment of the sum of expenses so awarded in the Small Debt Court. But this proceeding was competent, just because the Justices had, under the Nuisances Removal Act, no power of execution; and the application for the Small Debt decree was as appropriate a step as in the case of an award by an arbiter, where the submission contains no clause of execution. The application for a Small Debt decree being competent, the decree is final under the Small Debt Act.
“The incompetency of the present action may perhaps be sufficiently rested on the single circumstance of the Small Debt decree being unsusceptible of review. Because this exclusion of review prevents all inquiry into the validity of the debt decerned for. Whether there was a debt or not, that it to say, whether under the nuisance proceedings there was power to award expenses, was the question on the merits in the Small Debt Court; and it would be no good ground of reduction that the judgment was erroneous, even if this were so. But either view leads to the same result.”
The pursuer reclaimed, and the case, after being heard before the First Division, was re-argued before seven judges.
Watson and Brand for reclaimer.
Gifford and Mackintosh for respondent.
At advising—
After some procedure, unnecessary to be mentioned, the Justices, on 31st October 1866, ordained the respondent to remove the nuisance complained of within five days, in terms and under penalties of the Act, and found him liable in expenses, modified to &2, 18s. 5d., besides dues of extract. This decree was extracted, but the extract not having been acted on its terms are not properly before the Court; from the statements in the record, however, it appears to have authorised a charge for payment within 15 days “under the pain of poinding.” Thereafter, under the apprehension that the Justices in decerning for expenses had acted ultra vires, the inspector applied for and obtained a decree of the Justices of the Peace sitting as a Small Debt Court of date 4th February 1867. The account sued for in the small debt action was to the following effect ( reads).
On 12th February thereafter, this action of reduction was instituted, concluding to have set aside and reduced the decree of the Justices under the original complaint and the relative extract, as also the decree of the Small Debt Court.
The first point to be considered regards the power of the Justices of the Peace to decern for expenses against the pursuer, the respondent in the application, under the Nuisances' Removal Act. No express power is conferred by that Act upon Justices of the Peace to award expenses. Such power is by the 44th section conferred upon the Sheriff, and it may therefore be doubted whether, as the jurisdiction was conferred by Statute, the Justices could give expenses under their inherent power and common law to award expenses as a judicial tribunal. My impression is, that the Lord Ordinary is right in the opinion which he indicates in his note,—that it may be fairly held that the Justices had power to act as they did; but I do not feel it necessary to rest the validity of their decree upon that ground, having formed a clear opinion that any doubt as to this is removed by section 447 of the General Police Act 1862.
This brings me to by far the more important question, as I think, involved in this discussion—viz., Whether it is to be held that the Nuisances Removal Act was conclusively amended by the General Police Act of 1862, in so far as regards those provisions which form Part 7th of the Act, under the head “Promotion of the Public Health?” It is certain that the town of Girvan has not adopted the General Police Act; and it is contended by the pursuer that without and until such adoption, no part or portion of that Act can be held operative within the town of Girvan, or in any other place which has not adopted the General Police Act. As opposed to this contention, it is maintained by the defender that there is a clear distinction in the Act of 1862 between the Parts of the Act for regulating the police of towns and populous places, and for lighting,
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This point, however, is not new to those of us who are Justiciary Judges. The case of Kennedy v. Cadenhead brought the matter distinctly under our view; and, for myself, I observe from the report of the case, that I expressly put my concurrence in the judgment proposed by the Lord Justice-General, on the ground that § 447 conferred upon Magistrates and Justices of the Peace the same powers in regard to proceedings under the Nuisances Act which it conferred on the Sheriff. Nor can it be said that this recognition of the effect of the Police Act, in amending the Nuisances Removal Act in the decision I have mentioned, arose from the City of Aberdeen having adopted the Police Act. The report is entirely silent as to that point, and the fact is, as I have ascertained by inquiry, that Aberdeen has a Police Act of its own, and has not adopted the General Police Act. But however this may be, my renewed consideration of the question has confirmed me in the opinion which led me to concur in the judgment to which I have referred.
The remaining question regards the legality of the Small Debt decree,—and on this point I cannot concur in the view expressed by the Lord Ordinary in the note to his interlocutor. It was quite incompetent for Justices of the Peace sitting as a Small-Debt Court, to entertain the claim made in the account sued for as set forth in the complaint before them. That claim was expressly stated to be for expenses already found due by decree of the Justice of Peace Court. The fact of such decree having been pronounced excluded their jurisdiction in the matter. The claim was not for constitution of a debt, but for a decree-conform which they had no power to pronounce. It was not within their province as a Small-Debt Court to interfere. Even if the party had obtained a decree from the Justices of the Peace, which they could not enforce by the usual executorials of the law, resort must, in that case, have been had to a different course of proceeding. But I apprehend that, there being power in the Justices to award expenses, there was power in their clerk to issue the usual precept or warrant for making the decree effectual by diligence of arrestment and poinding.
In conclusion, I have only further to observe that, having regard to the terms and prayer of the original petition and complaint,—no penalties being concluded for, but only expenses,—I regard the original proceeding as civil process, and not as partaking of a criminal nature. Nor do I think that this conclusion is at all affected by § 28 of the Summary Procedure Act. Where no penalties are concluded for and only expenses awarded, I cannot hold that there was power, either in the Sheriff or the Justices of the Peace, to substitute imprisonment for a limited period in the event of the expenses not being paid, as § 446 of the Police Act gives to the Sheriffs power to do, where penalties as well as expenses are awarded. This point, however, it may not be necessary to determine, as both parties concur in assuming the proceedings to be civil and not criminal in their nature.
I am of opinion that the incompetency of the application to the Small Debt Court appeared on the face of the proceedings, and, therefore, we are entitled to reduce the Small Debt decree. The complaint to the Small Debt Court bore on its face to form a demand for the “sum or expenses due by the defender to the pursuer; and contained in a finding or decree of the Justice of Peace Court at Girvan, pronounced in a petition and complaint at the instance of the pursuer against the defender, proceeding and founded on the Nuisance Removal (Scotland) Act 1856.” This clear enunciation of the claim ought to have shown the Justices in the Small Debt Court that the matter was beyond their jurisdiction; and should now enable us, without any difficulty, to set aside their decree, incompetently pronounced.
It remains, however, to inquire whether the decree
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I should have some difficulty in holding that, at common law, and irrespectively of statutory power, the Justices in the Nuisance Removal Process had power to award expenses. At the same time, there appear to me strong grounds for maintaining that whenever any proceeding takes the form of a judicial inquiry—as by the leading a proof, the hearing of parties, and the like—there must be held to be inherent in every court the power of awarding costs against the unsuccessful party. In the present case, however, I think all difficulty is removed by the existence of what I think undoubted statutory power to award expenses. Under the Nuisance Removal (Scotland) Act 1856 the judicial power of enforcing the Act is given to the Sheriff, or to any resident Magistrate or Justice of the Peace; and on being satisfied of the existence of the nuisance, such official is, by section 10, authorized to “decern for the removal or remedy or discontinuance of the nuisance, or interdict of the nuisance, as hereinafter mentioned.” There is thereafter prescribed a form of procedure, and power to award expenses is conferred; but, by what appears a manifest oversight, it is only the sheriff, and not the other magistrates previously mentioned, who is alluded to. It has been argued that by the previous reference the same power must be held conferred on these and on the sheriff. There is difficulty in this construction, though it may not be absolutely inadmissible. But again, all difficulty seems to me removed by the 447th section of the General Police and Improvement (Scotland) Act 1862, declaring that “all the provisions of the last recited Act, and all the procedure therein prescribed in regard to proceedings before, and to appeals from any judgment or order of the sheriff, shall apply to proceedings before, and to any judgment or order of any magistrate or justice of the peace under the said Act.” I am of opinion that this clause of the General Police Act in no way depends for its efficacy on the adoption of this statute, made optional in a previous part of it. The Act is generally, as its title bears, “An Act to make more effectual provision for regulating the police of towns and populous places in Scotland, and for lighting, cleaning, paving, draining, supplying water to, and improving the same, and also for promoting the public health thereof.” As such Police Act, it is made optional to the Burghs to adopt its provisions in whole or in part. But in the seventh part of the Act there is introduced a succession of clauses, which appear to me manifestly inserted for the totally different purpose of amending the Nuisance Removal Act; a general statute, applicable, without the option of adoption, in every part of Scotland. I conceive that these clauses cannot be held dependent for their efficacy on the adoption by the Burghs of the police provisions. The clauses are applicable as amendments of the Nuisance Removal Act, wherever that Act is called into operation; which it may be in any parish, whether that parish be in a position to adopt the police provisions or not. I cannot come to the conclusion that if no burgh whatever should adopt the police provisions the amendments of the Nuisance Act should on that account remain a dead letter over all Scotland. Nor can I think that the application of these amendments can be held to depend on an adoption which is only applicable to burghs or populous places called by that name, and has no room in ordinary rural parishes; any supposed necessity of which must therefore at once exclude the possibility of applying the amendments of the Nuisance Act in nine-tenths of the country. By virtue of the Nuisance Removal Act thus, as I conceive, amended, I think the Justices had in the present case power to award expenses; and if this is to be held it makes it unnecessary to inquire whether such power was possessed by them on any other ground.
The result is, that whilst the Small Debt decree falls, in my opinion, to be reduced, the defender should be assoilzied from the other conclusions of this action of reduction, applicable to the decree for expenses pronounced in the Nuisance Removal Process. I am disposed to think it beyond the limits of the present case to determine what amount of execution is competent on this judgment for expenses, or to direct the holder of that decree as to the steps of diligence he should follow out. I only think it necessary to say, that if the Justices of Peace are, in respect of awarding expenses, put on the same footing with the sheriff, I find it difficult to conceive that their judgment should not receive exactly the same measure of execution. The execution must, however, in any event, be that applicable to a decree for expenses in a civil suit, and cannot comprehend the penal imprisonment proper to a combined infliction of penalties and expenses. I entirely agree in holding that the proceedings in question were civil not criminal; and that therefore our jurisdiction is not excluded.
The
Agent for Pursuer— D. F. Bridgoford, S.S.C.
Agent for Defender— L. M. Macara, W.S.