Scottish Court of Session Decisions

This was a suspension of a warrant of imprisonment obtained in the Sheriff-court of Berwickshire by William Mossman against John Shiell.

The Lord Ordinary ( Mackenzie) pronounced an interlocutor in the following terms, which explain the facts of the case and the conclusion of the parties:—“Finds the complainer liable in expenses; of which allows an account to be given in, and remits,” &c.

“ Note.—The complainer admits that a decree in foro was pronounced against him on the 4th August 1871, in the Sheriff Small Debt Court at Dunse, for the sum of £11, 10s. 9d., with £3, 4s. 7d. of expenses. He avers that, although this decree was in foro, he was not personally present at the time that it was pronounced; and he maintains that the decree which was annexed to the summons, in conformity with the provisions of section 13 of the Small Debt Act, 1 Vict. cap. 41, improperly contains a warrant authorising poinding and sale and imprisonment, after the elapse of ten free days from the date of the decree, which is only competent, according to the provisions of the section, if lie had been personally present, and does not contain a warrant authorising poinding, and sale and imprisonment after a charge of ten free days, as it ought to do, seeing that he was not personally present. Having been imprisoned on 29th August 1871, without any previous charge, the complainer, who offers neither caution nor consignation, craves in his note that what he calls the warrant of imprisonment contained in the decree be suspended, and that he be liberated.

The Lord Ordinary is of opinion that the note of suspension and liberation is incompetent, in respect of the provisions contained in the 30th and 31st sections of the Small Debt Act. By these sections it is enacted that ‘no decree given by any Sheriff in any cause or prosecution decided under the authority of this Act,’ shall be subject to any form of review or stay of execution on any ground or reason whatever, otherwise than by appeal to the Court of Justiciary, and such appeal is declared to be competent only upon the grounds therein specially set forth, one of these being, ‘such deviations in point of form from the statutory enactments as the Court shall think took place wilfully, or have prevented substantial justice from having been done.’ The Lord Ordinary considers what the complainer seeks to suspend, under the name of the warrant of imprisonment, is truly the decree given by the Sheriff against him under the authority of the Act, which, in conformity with the provisions of the 13th section of the Act, is annexed to the summons. That section provides, that when the parties shall appear, the Sheriff, after hearing them and taking proof when necessary, ‘may pronounce judgment, and the decree, stating the amount of expenses, if any, and containing warrant for arrestment, and for poinding and imprisonment, when competent, shall be annexed to the summons or complaint, and on the same paper with it, agreeably to the form in schedule (A) annexed to this Act, or to the like effect.’ The form No. 7 of schedule A, being that referred to in this section, is entitled—‘Decree for pursuer in a civil cause,’ and it bears that ‘the sheriff of the shire of finds the within designed defender liable to the pursuer in the sum of, with of expenses, and decerns and ordains instant execution by arrestment, and also execution to pass hereon by poinding and sale and imprisonment, if the same be competent after free days.”

The decree pronounced against the complainer, and annexed to the respondent's summons, is in exact conformity with this schedule, and it is not disputed that it is ex facie regular. The Lord Ordinary cannot doubt that this is, according to the true intent and meaning of the Small Debt Act, a decree given by the Sheriff under the authority of that Act. It is called a decree in the 13th section of the statute, and it is thereby directed to contain, as part of it, a warrant for arrestment and for poinding and imprisonment. It is entitled a decree in the statutory schedule, and it bears that the Sheriff decerns and ordains execution by poinding and sale and imprisonment. It is also called a decree in the 19th section of the Act, which provides that such decree, or an extract thereof, may

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be enforced in another county, upon being produced to and indorsed by the Sheriff-clerk of such other county. No doubt the decision of the Sheriff, entered in the Book of Causes in conformity with the provisions of section 17 of the Act, is in that section called ‘the final decree.’ But that does not, it is thought, affect the construction of the 13th section, in which that final decree is called ‘judgment,’ and which contains the provisions for the ‘decree’ containing warrant for arrestment and poinding and imprisonment, when competent, being annexed to the summons, according to the form in the statutory schedule. It is this decree only which could be produced to and indorsed by the Sheriff-clerk of any other county. The complainer is truly therefore seeking a review or stay of execution of that statutory decree, on the ground of deviation in point of form from the statutory enactment. Such review and stay of execution cannot, the Lord Ordinary considers, be given in the Court of Session.

“It may be noticed that the Sheriff-court Act of 1853 (16 and 17 Vict. cap. 80), provides (section 26,) that when a decree pronounced by the Sheriff in the Small Debt Court, for any sum exceeding £8, 6s. 8d., shall have been put in execution by imprisonment, the party imprisoned may bring such decree under the review of the Sheriff, by way of suspension and liberation.”

The suspender reclaimed.

Brand for him.

M'Kechnie for the respondent.

At advising—