Scottish Court of Session Decisions

This was a suspension at the instance of James Glass, general dealer, Glasgow, in which he sought to have suspended a decree for £56, 5s. 4d. pronounced against him and in favour of the respondent Joseph Laughlin, also a general dealer residing in Glasgow, in the Small Debt Court of Glasgow upon the 29th of February last. The circumstances, as stated by the suspender, under which he sought to have this done were as follows: —In the month of January 1875 Glass raised an action in the Small Debt Court of Lanarkshire against Laughlin, and afterwards upon 10th February obtained decree in his favour. Against this judgment Laughlin appealed to the Circuit Court of Glasgow in terms of the Small Debt Act. At the following Spring Circuit this appeal was heard, and a remit made for inquiry into the facts and circumstances of the case to the Sheriff of Lanarkshire. A further remit was made at the following Autumn Circuit Court, the appeal being finally disposed of with the consent of both parties at the Christmas sittings of that Court, when Lord Young pronounced the following interlocutor:—“Having, of consent, heard parties' procurators on the report of the Sheriff, under the remit made to him by interlocutor of the Circuit Court of Justiciary of 16th September last, Sustains the appeal: Recalls the decree complained of: Remits the cause to the Sheriff to proceed therein as may be just: Finds the appellant entitled to expenses, remits the account thereof when lodged to the Auditor of the Sheriff Court at Glasgow to tax and report to the said Sheriff, and grants power to the said Sheriff to decern for the same.”

In terms of this remit the Sheriff of Lanarkshire resumed consideration of the case, and upon 29th February 1876 assoilzied the respondent, and decerned against the suspender Glass for the sum of £56, 5s. 4d., being the amount of expenses of appeal, as ascertained by taxation, under Lord Young's remit.

Glass sought to suspend this decree on the ground that the Court of Justiciary possessed no power, either by statute or at common law, to delegate any part of its functions, and that the part of Lord Young's judgment which granted power to the Sheriff of Lanarkshire to decern for the expenses incurred under the appeal was ultra vires and inept.

Upon 16th June 1876 the Lord Ordinary ( Young) Pronounced the following interlocutor:—

“16 th June 1876,—The Lord Ordinary having heard the counsel for the parties, and considered the record and whole process, Repels the reasons of suspension: Finds the letters and charge orderly proceeded, and decerns: Finds the suspender liable in expenses, and remits the account thereof when lodged to the Auditor to tax and report.

Note.—The complainer asks suspension of a decree of the Sheriff of Lanarkshire, pronounced under a remit to him by the Circuit Court of Justiciary at Glasgow, in an appeal to that Court under the Small Debt Act. The ground of suspension is that the Circuit Court exceeded its jurisdiction in making the remit, and that there

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fore the decree of the Sheriff acting under it is inept.

The respondent maintains (1st) that the suspension is incompetent; and (2d) that it is groundless, the Circuit Court not having exceeded its jurisdiction.

With respect to the question of competency, the complainer, while conceding that this Court cannot directly review a judgment of the Circuit Court, contended that a decree pronounced by a Sheriff under a remit from that Court was reviewable on the ground of want of jurisdiction, and that if a remit from the Circuit Court appeared to be the only foundation of his jurisdiction, this Court might consider and determine whether that was sufficient. I do not know that it was exactly so put in argument, but as this seems to me the strongest way in which it can be put I so state it.

I am of opinion that this Court must assume that the Circuit Court, being a superior if not Supreme Court, acted within its jurisdiction, and according to the law and practice of that Court, in any judgment which it pronounced; and that as this Court cannot under any form of review directly set aside or stay the execution of any such judgment, it cannot or ought not to do so indirectly by reviewing a Sheriff's decree pronounced under and according to the terms and directions of such judgment, on the ground that the Circuit Court had exceeded its jurisdiction in pronouncing it. But, although I state this as a general proposition, I desire to explain that I do so with the qualification which must tacitly accompany most general propositions, viz., that it is not meant to exclude the possibility of an exception from it under circumstances sufficiently exceptional to warrant it. Whether or not such circumstances may conceivably occur need not be determined. It is enough to have a general rule and no good reason for departing from it in the particular case. That there is no such reason here I think very clear. The expenses of the appeal which the Circuit Court awarded to the appellant were exceptionally heavy, from the circumstance of two remits having been made to the Sheriff to investigate and report on matters of fact, and were chiefly incurred before the Sheriff in the execution of these remits. As I was myself the Circuit Judge who saw fit to award the expenses, I am able to state (what I could otherwise only have taken as a reasonable supposition) that I remitted to the Sheriff to ascertain and decern for the amount, if not with the express consent of both parties, certainly without the slightest objection by either, as the most expedient course in the circumstances, and preferable to the alternative of a taxation and report to the next Circuit for decree. It was the third Circuit at which the appeal had come up, and being the Christmas Circuit, I only consented to hear and decide it then at the urgent request and of consent of both parties, who greatly desired then to have an end of the matter. Therefore, whether or not it be possible to conceive circumstances in which this Court might competently review, directly or indirectly, the judgment of a Circuit Court of Justiciary, I am of opinion that here are no such circumstances, and that the general, if not universal, rule against the competency of such review, must prevail.

If the suspension were assumed to be competent, I should have to express my own opinion that it is unfounded. For I think the Circuit Court of Justiciary has jurisdiction to remit to an inferior Justiciary to tax and decern for the expenses of an appeal awarded by that Court. I have in my own practice known of remits to the inferior Judge of the whole cause, with certain instructions (the competency of which is, I suppose, not doubtful), but with power to dispose of the expenses of the appeal on the termination of the cause.

I cannot avoid remarking, in conclusion, that the present suspension seems one regarding mere form of procedure, by which the complainer cannot possibly take any substantial benefit. Pay the expenses awarded against him by the Circuit Court he must, and if the Sheriff cannot competently decern therefor on a remit, the only result is that the Circuit Court must on application at his expense pronounce such decree. There is here no question of a peremptory diet which has fallen.”

Glass reclaimed to the Second Division.

Argued for him—There is no authority for holding that in such a case as the present review by the Court of Session is excluded. Under the Heritable Jurisdictions Act, which instituted appeals to the Circuit Court, that Court only could give a decree for costs “which shall be final;” a remit to the Sheriff was ultra vires.

Counsel for the respondent was not called upon.

At advising—