Scottish Court of Session Decisions

The Debts Recovery (Scotland) Act 1867, sec. 17, 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.”

In April 1886 Robert Pringle, butter merchant, Castleblaney, Ireland, and his mandatories, raised an action in the Sheriff Court of Lanarkshire at Glasgow under the Debts Recovery (Scotland) Act 1867, against James Robertson junior, grocer, Glasgow, and his father James Robertson senior, sergeant of police there, jointly and severally or severally, concluding for payment of £12, 5s. 10d. as the price of goods sold and delivered by the pursuer to the defenders or one or other of them. James Robertson senior denied liability, alleging that he had no connection with the business in connection with which the alleged debt was incurred, it being solely his son's. James Robertson junior did not defend.

On 14th August the Sheriff-Substitute ( Balfour) “ having considered the evidence adduced,” found that the goods were supplied on the credit of James Robertson senior; that James Robertson junior was simply his father's manager, and therefore—James Robertson junior not defending the action—found them jointly and severally liable in the sum sued for.

“ Note.—… Proof was led in the case at two diets, viz., 1st June and 14th June. At the first diet the father was not represented by an agent, but at the second he was. The proof was closed at the second diet and avizandum made. The father's agent made no request to be allowed to lead more proof, but he asked for a continuation of the cause for the special purpose of considering whether he would raise an action of declarator in the Court of Session in order to have the question of the father's liability determined in that Court. I continued the case on two occasions for that special purpose, and at the last diet the agent appeared with six witnesses and proposed to examine them. I refused to allow the examination, because the proof had been closed on 14th June, avizandum had been made, and judgment would thereupon have been pronounced but for the special request of the agent to be allowed time to consider about raising an action of declarator. The witnesses examined were the two defenders, Thomas Holland, the pursuer's agent; John Wilson Bruce, trustee on the son's estate; and Mr John Andrew, acreditor.”

James Robertson senior appealed to the Sheriff.

On 25th October the Sheriff ( Berry) adhered.

“ Note.—After giving full consideration to this case I can see no sufficient ground for interfering with the judgment appealed against. Without deciding the general question which was raised, whether a Sheriff can order additional evidence to be taken in a case where there has been no note of evidence taken by the Sheriff-Substitute, it is difficult to conceive a case where a Sheriff would make such an order without having had the means of judging of the sufficiency of the evidence which was before the Sheriff-Substitute. In the present case there is nothing to satisfy me

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that to make such an order would conduce to the ends of justice.”

On 5th January 1887 James Robertson senior raised in the Court of Session the action of declarator and reduction now reported, calling as defenders James Robertson junior and the trustee under a trust for his creditors, Pringle and his mandatories, and a number of persons claiming to be creditors of the business carried on in name of James Robertson junior. He sought declarator that he was not a proprietor of or partner in, or in any way interested in, the business conducted by James Robertson junior, but that it belonged wholly to James Robertson junior, who, and not the pursuer, was liable for the debts, and further, he sought reduction of the decree of the Sheriff-Substitute and Sheriff in Pringle's action.

He averred that he had no interest in the business, and further—“(Cond. 8) The procedure in said debts recovery action was grossly irregular, unjust, and illegal in consequence of the Sheriff-Substitute, after having made avizandum, allowing the pursuer (the present defender Robert Pringle) to lead further evidence, and thereafter refusing to allow the defender (the present pursuer) to lead evidence in defence. The pursuer was thus denied the justice he was entitled to, and was deprived of the opportunity of leading evidence to rebut that which had been led for the said Robert Pringle, and to prove (which he was quite prepared to do) that the business in question did not belong to him, and that he was not a partner therein with his said son. In these circumstances the pursuer is entitled to have said judgment or decree of the Sheriff-Substitute and said interlocutor or decree of the Sheriff reduced as craved. The defender Pringle, on or about 1st and 15th November 1886, caused arrestments to be lodged with J. D. Borthwick, treasurer of the police force, Glasgow, attaching the pursuer's wages.”

Preliminary defences were lodged.

The defenders pleaded, inter alia, that the action was incompetent.

On 11th January 1887 the Lord Ordinary pronounced the following interlocutor:—“Repels the defences as defences against satisfying the production, reserving them quoad ultra: Assigns this day eight days as a term for satisfying the production, and grants warrant to and ordains the Sheriff-Clerk of Lanarkshire at Glasgow to transmit the decrees and interlocutors pronounced in the debts recovery action libelled, with the summons, notes of pleas, and numbers of procedure, or certified copies thereof: Finds the defender Robert Pringle liable to the pursuer in expenses of process incurred by him since 23d December 1886, being the date of lodging preliminary defences,” &c.

“ Note.—As the grounds of reduction alleged appear to be (at least in part) that the interlocutors and decrees challenged were pronounced by the Sheriff in disregard of the provisions of the statute, and not under the authority thereof, I think it necessary that the proceedings should be produced, and that the proper course is to pronounce an interlocutor such as was pronounced in the first branch of the case of M'Millan v. The Free Church of Scotland, 22 D. 290. It was suggested by me at the time the record was closed on these preliminary defences that the production might be satisfied under reservation, but the suggestion was not adopted. As the expense of printing and of this discussion will not be available, I think the defender must be found liable in expenses.”

The defenders reclaimed (by leave), and argued—The action was incompetent, as no review of the Sheriff's decision was competent by way of reduction, or in any other way than that which the statute provided. The parties not having asked the Sheriff-Substitute to take a note of the evidence, therefore there could be no appeal on the facts, which was what was really desired by pursuer.

Authorities—Act 30 and 31 Vict. cap. 96, secs. 8, 9, 10, and 17; Cumming v. Spencer, November 21, 1868, 7 Macph. 156.

Replied for the respondent—This was a case in which an action of reduction should be allowed. There had been a miscarriage of justice, as the Sheriff had refused to allow the defender of the action in the Inferior Court to lead any evidence at all. The remedy sought was the appropriate one.

Authorities— Graham v. M'Kay, February 25, 1845, 7 D. 515; Murchie v. Fairbairn, May 22, 1863, 1 Macph. 800; Tully v. Lennon, July 12, 1879, 6 R. 1253.

At advising—