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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Samuel v. Mackenzie & Bell [1876] ScotLR 14_130 (29 November 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0130.html
Cite as: [1876] ScotLR 14_130, [1876] SLR 14_130
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SCOTTISH_SLR_Court_of_Session
Page: 130↓
Court of Session Inner House First Division.
[
v.
Facts:
The 17th section of the Debts Recovery (Scotland) Act provides that “no interlocutor judgment, order, or decree pronounced under the authority of this Act shall be subject to reduction, advocation, suspension, or appeal or any other form of review or stay of diligence, except as herein provided, on any ground whatever.”— Held that the suspension of a charge upon a decree obtained under the Act is not thereby excluded.
This was a suspension brought by Ernest Samuel, jeweller, Glasgow, of a charge upon a decree obtained against him in the Sheriff-Court of Glasgow by Mackenzie & Bell, Glasgow, the respondents in the suspension.
The circumstances were as follows:—On 30th December 1875 the complainer had presented a petition for sequestration of his estates, wherever situated in Great Britain, to the Bankruptcy Court in London, the majority in number and value of his creditors being resident in England. The petition had been filed, and his creditors, among whom were the respondents, had duly lodged their names and designations and the
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amounts of their debts. On 21st January 1876, after notice, the creditors met and resolved to accept a composition of four shillings per pound, and the further proceedings in the sequestration were admittedly carried through in regular form, so that no exception could be taken to them by the respondent. On 8th January 1876 a summons under the Debts Recovery (Scotland) Act, concluding for payment of £14, 16s. 4d. for work done, was raised in the Sheriff Court of Lanarkshire by the respondents against the complainer, and. decree was given in absence on 17th January. The complainer stated that his reason for not appearing was that he believed all diligence against his estate was superseded by the sequestration awarded in England. Upon the 11th July the respondents instructed that a charge should be given up on the decree, and on 13th July they raised and executed a summons of furthcoming upon arrestments of the sum due them, used in the hands of the Trongate Branch of the Commercial Bank in Glasgow.
The complainer now sought to have the charge suspended, and the furthcoming interdicted and prohibited.
The respondents answered that the suspension was incompetent under the 17th section of the Debts Recovery Act, which provides that “no interlocutor, judgment, order, or decree pronounced under the authority of this Act, shall be subject to reduction, advocation, suspension, or appeal, or any other form of review or stay of diligence, except as herein provided, on any ground whatever.”
The Lord Ordinary pronounced the following interlocutor:—
“ Edinburgh, 7 th September 1876.—The Lord Ordinary having considered the note of suspension and answers and amended answers, refuses the note as incompetent; recals the sist and interim interdict already granted, and decerns; finds the complainer liable in expenses to the respondents; appoints an account thereof to be lodged, and remits the same to the Auditor to tax and to report.
“Note.—In this application suspension is sought of a charge given to the complainer upon a decree given by the Sheriff of Lanarkshire at Glasgow, dated 17th January 1876, pronounced in an action at the instance of the respondents, raised under the ‘Debts Recovery (Scotland) Act 1867.’ The charge was given on 11th July 1876, and it has been followed by arrestment and by an action of furthcoming against further proceedings, in which interdict is also sought.
“The ground of suspension is, that in certain proceedings under the English Bankruptcy Act, which was commenced in December 1875, an offer of composition was accepted by the creditors of the complainer at meetings held on 21st January and 2d February 1876; that the respondents were bound thereby; and that the charge now sought to be suspended is incompetent. But no objection appears to be stated to the decree itself, upon which that charge proceeds, and which, although pronounced in absence of the complainer, might have been resisted by him had he chosen to appear and defend the action. Without expressing any opinion as to the effect, if any, which these English bankruptcy proceedings may have had upon the right of the respondents to sue the complainer in the Courts of Scotland, I am of opinion that the remedy of suspension which the complainer now seeks is excluded by the Debts Recovery Act, which enacts (sec. 17) that ‘no interlocutor, judgment, order, or decree pronounced under the authority of this Act, shall be subject to reduction, advocation, suspension, or appeal, or any other form of review or stay of diligence, except as herein provided, on any ground whatever.’ The statute refers to and incorporates in itself certain clauses of the Small Debt Act of 1837, and, inter alia, sec. 16, which enables a defender against whom decree in absence has been pronounced to obtain in the Sheriff Court a sist of diligence, and to be reponed under the circumstances and conditions therein expressed. Whether and to what extent that remedy may be now open to the complainer is a matter on which I express no opinion. But it appears to me to be not doubtful that the remedy winch he now seeks is excluded by the Debts Recovery Act 1867, and that the note of suspension and interdict must therefore be refused, with expenses.”
The complainer reclaimed.
Authorities quoted— Learmont v. Darling, Feb. 28, 1849, 1 D. 884; Scott v. Lethan, June 27, 1844, 6 D. 1221; Murchie v. Fairbairn, May 22, 1863, 1 Macph. 800.
At advising—
It is necessary to attend to the state of the facts. Judgment was pronounced in absence of the complainer upon 17th January 1876. The reason why he was absent was that he had no defence, as the debt was due, and he had nothing to say against it. He therefore abstained from appearing. It is suggested that the way to get the better of this decree is to apply for a rehearing before the Sheriff under another section of the statute. But that would be of no use, because there could be no better defence then than before the decree; and the purpose for which a rehearing is allowed is to enable a party against whom a decree in absence has been pronounced to be heard again upon the merits. The charge was not given till the 11th July, six months after the decree, and in the meantime certain proceedings had taken place in the Bankruptcy Court in England, which are the foundation of the present suspension. It is needless to go through the details of these proceedings. The 21st January and the 2d February 1876.are important dates, for it was upon these days the arrangements for a composition were carried through. It is manifest that if they were regularly conducted, the effect was to discharge the complainer of all debts due by him on payment of the stipulated composition.
As the record stands, the proceedings are quite regular, except in so far as it is not admitted by the respondents that they received notices of the
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The charge here under suspension is a charge upon a decree for payment of the whole debt, and the ground of suspension is that the debt is not due, although at the date of the decree of the Sheriff it was due. But that may have been extinguished by payment of a part of the debt, and if a charge is given for the whole debt under the Debts Recovery Act, it surely would not be incompetent to suspend the charge. The composition arrangement is only another mode of discharging the debt upon payment of a restricted amount. Further diligence upon the decree is thereby suspended.
It cannot be too distinctly stated that this is not a review of the interlocutor granting decree. The decree is here assumed to be valid and final. We are now affirming that under the circumstances in which the respondents are placed they are not entitled to enforce their decree in the face of the composition contract which has been carried through.
On these grounds, I think the Lord Ordinary's interlocutor must be recalled, and the case must be remitted to the Lord Ordinary to pass the note.
The Court pronounced the following interlocutor:—
“The Lords having heard counsel on the reclaiming note for the complainer against Lord Curriehill's interlocutor, dated 7th September 1876, Recal the said interlocutor, and remit to the Lord Ordinary in the Bill Chamber to pass the note, and grant interim interdict as craved.”
Counsel for Complainer— Millie. Agents— J. & A. Hastie, S.S.C.
Counsel for Respondents — J. C. Lorimer. Agents— Davidson & Syme, W.S.