Scottish Court of Session Decisions

Lord M'Laren—I concur with Lord Adam, and have little to add.

The first proposition maintained by Mr Anderson is that suspension of a charge with its warrant is a legal and competent mode of obtaining review of a decree upon its merits.

There was, no doubt, a period in the history of our process law when that proposition might have been affirmed. I think it is laid down in the institutional writers that decrees both of inferior courts and of the Lords Ordinary might be reviewed by way of suspension.

I should desire to reserve my opinion upon the question how far such procedure would be still competent in view of the radical changes introduced by the Court of Session Act 1868, in the mode of dealing with judgments of inferior courts. But supposing the proposition to be well founded it does not appear to me that any proper application of the kind is before us. We are not asked to review a judgment finding the defender liable for aliment on his own admission (which was the only matter before the Sheriff), but we are asked to set aside the decree upon grounds which were not before the Sheriff, and I fail to see how an application of the kind can be regarded as a mode of reviewing the decision of the Sheriff.

While the Lord Ordinary was no doubt quite entitled to suspend, no one opposing, he was I think also right in rejecting the complainer's first plea-in-law and the argument founded upon it.

Lord Kinnear—I am of the same opinion. I quite agree with Lord M'Laren that it is unnecessary for the purpose of this case to consider how far the process of suspension of a final decree of an inferior court is now available as a process of review. Assuming it to be so, I confess I should be disposed to recal the note of suspension now before us as presenting to the Court, not an appeal against a judgment of the Sheriff on its merits, but a note of suspension of a charge for the purpose of staying diligence. However that may be, I think the true and sufficient ground of judgment is that which has been already stated. The charge and warrant of imprisonment complained of is a charge proceeding upon a warrant granted upon a petition to the Sheriff under the special provisions of the statute. The sum which the complainer has been charged to pay has now been paid, and therefore the warrant is exhausted because it has been satisfied, and that seems to me a perfectly sufficient ground for suspending a charge and warrant for imprisonment. But that being done, the only ground on which we are asked to consider anything further upon the complainer's application is that the decree which was obtained against him was obtained by fraud of the pursuer of the action. That is not a ground of review of the Sheriff's judgment on its merits, but a reason for setting aside the judgment on grounds altogether extrinsic to the process. I agree that that is not a competent process for raising any such question, and therefore that the Lord Ordinary's judgment must be adhered to.

The Lord President concurred.