Scottish Court of Session Decisions

An action was raised in the Sheriff Court of Renfrew and Bute by the Commissioners of the burgh of barony of Pollokshaws against Mary Gardner M'Lean, residing at 109 South Portland Street, Glasgow, owner of the heritable subjects No. 53 New Street, Pollokshaws, and against Robert Millar, contractor, tenant and occupier of the said subjects.

The pursuers craved the Court to grant decree against the defenders jointly and severally for payment of a sum of £26, which the pursuers averred was the proportionate share due by Miss M'Lean as owner of the subjects, in respect of repairs executed by them on the street upon which the subjects abutted. The decree craved against the tenant was restricted to the amount of rent due by him for the subjects to Miss M'Lean.

No appearance was made for the tenant.

Miss M'Lean pleaded—“(1) No jurisdiction. The defender Mary Gardner M'Lean has no domicile within the sheriffdom of Renfrew and Bute.”

The Sheriff-Substitute ( Henderson) on 4th July pronounced the following interlocutor:—“Sustains the first plea-in-law for the defender Miss Mary Gardner M'Lean, to the effect that he has no jurisdiction in the action as it at present stands, the said defender residing outwith the county of Renfrew, and not having been personally cited: Accordingly dismisses the petition so far as it is directed against the defender, the said Mary Gardner M'Lean,” &c.

The pursuers appealed to the Sheriff ( Cheyne), who on 9th September 1898 sustained the appeal, recalled the interlocutor of the Sheriff-Substitute, repelled the defender's preliminary pleas, and allowed the parties a proof.

Note.—“While it is quite true that the fact of possession of heritable property in a county does not by itself give the Sheriff of that county jurisdiction over the owner

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of the property, it has been held ( Culross Special Water Supply District Committee v. Smith Sligo's Trustees, 1891, 19 R. 58) that in all actions relating to the possession of his property, or of things locally situated within it, an owner must answer in the Sheriff Court of the county where the property lies, though he does not reside and has not been personally cited within the county, and the present Lord Kincairney, as Sheriff of Stirlingshire, held himself entitled to entertain an action of damages for failure to implement the conditions of a lease of a Stirlingshire farm, though the defender, the owner of the farm, lived in Renfrewshire and was served with the action there— Taylor v. Shaw Stewart, 1881, 2 Guth. Sel. Cas. 244; and it humbly appears to me that, though I may be somewhat extending, I am not unduly straining, the principles of these two cases when I hold, as by repelling Miss M'Lean's first plea I do, that notwithstanding her being resident and having been cited in another county, I may competently deal with the present action on the ground that, albeit the claim is of the nature of a personal debt, it is founded upon a statutory obligation attaching to Miss M'Lean qua owner of property in Renfrewshire, and indeed arises directly from the fact of her ownership.”

A proof was led before the Sheriff-Substitute, who on 22nd November 1898 granted decree against the defender Miss M'Lean for the amount concluded for in the action. The defender appealed to the First Division on the question of jurisdiction, and argued—The mere possession of heritage in a county was insufficient to render a person subject to the jurisdiction of the Sheriff in a personal action if he resided outside the county— M'Bey v. Knight, November 22, 1879, 7 R. 255. The Sheriff's ground of decision that the pursuer's claim was founded upon a statutory obligation attaching to the defender qua owner of property in Renfrewshire, and that therefore she was subject to his jurisdiction, was not supported by the case quoted by him— Culross Special Water Supply District v. Smith Sligo's Trustees, November 6, 1891, 19 R. 58. That case related to the possession of the property itself, and accordingly it was in a different position from the present case, which related merely to a claim for the recovery of an ordinary debt, payment of which could be enforced in the same manner as that of any other debt.

Argued for respondents'—The case of Smith Sligo's Trustees, though not identical with the present one, was a strong authority for the proposition that where a debt was founded upon a statutory obligation attaching to a person qua owner of property within a sheriffdom, such person would be subject to the jurisdiction of the Sheriff of the county. While the pursuers were seeking to recover this debt, in the manner in which ordinary debts were recoverable by the law of Scotland, it would have been open to them to do so in a manner which was by statute specially appropriated to the sheriff within whose sheriffdom the subjects were situated— Burgh Police Act 1892 (55 and 56 Vict. c. 55), secs. 353 and 369. That supported the view that though the pursuers had chosen to recover the debt by an ordinary action, it would still fall within the Sheriff's jurisdiction.

At advising—