Scottish Court of Session Decisions

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Cite as: [1904] ScotLR 41_825, [1904] SLR 41_825

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SCOTTISH_SLR_Court_of_Session

Page: 825↓

Court of Session Inner House Second Division.

[Sheriff Court, Peterhead.

Friday, July 15. 1904.

41 SLR 825

Lamb

v.

Wood.

Subject_1Process
Subject_2Sheriff
Subject_3Poinding
Subject_4Whether Poinding a Process — Objector Appearing by Minute — Sheriff Court Act 1876 (39 and 40 Vict. c. 70), sec. 6.
Facts:

Held that a poinding having been executed, there was a depending process in the Sheriff Court, in which it was competent for an objector to appear by minute of compearance with note of objections annexed.

Headnote:

On 27th April 1904 a poinding of the goods of George B. Davidson, fishcurer, Peterhead, was executed at the instance of Robert Lamb junior, sawmiller, Logiegreen Works, Beaverhall, Edinburgh. The poinding proceeded on a warrant of the Sheriff of Aberdeen, Kincardine, and Banff.

Among the goods poinded were certain articles which had been purchased from Davidson on 27th April by Alexander Wood, fishcurer, Peterhead, as Wood alleged.

Wood lodged with the Sheriff-Clerk at Peterhead a minute of compearance and note of objections in process of poinding at the instance of Lamb against Davidson, and craved the “Court to recal” the poinding quoad the articles in question.

On 13th May 1904 the Sheriff-Substitute ( Henderson Begg) appointed the poinding creditor “to lodge answers to the foregoing note of objections.”

Lamb lodged answers to the note of objections, and a statement of facts which was answered by Wood.

Wood pleaded—“The goods having been sold and purchased in good faith prior to alleged poinding, the same is invalid to attach them, and separatim the minuter having acquired the ownership of the goods in ordinary course of business and paid for same is entitled to have the poinding recalled.”

Lamb pleaded—“(1) The minute being incompetent, the prayer ought to be refused with expenses.”

On 20th May 1904 the Sheriff-Substitute pronounced the following interlocutor:—Sustains the objections for Alexander Wood, and prefers him to the goods mentioned in the minute of compearance and note of objections for the said Alexander Wood.”

Lamb appealed to the Court of Session, and argued—There was no pending process in which the objector could lodge a minute; that which was lodged was therefore inept. The procedure was ruled by M'Dermott v. Ramsay, December 9, 1876, 4 R. 217, 14 S.L.R. 153. The appropriate remedy was by presentation of a petition in which a record could be made up and the question of property tried on a condescendence and note of pleas-in-law— Crozier v. Macfarlane, June 15, 1878, 5 R. 936, 15 S.L.R. 630; Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. c. 70), sec. 6; Hunter v. Anderson, January 19, 1831, 9 S. 289. The practice relied on by the respondent could not prevail against the statutory provisions. The Court would remit to the Sheriff to make up a record.

Argued for the respondent—Though not in accordance with the Act of 1876 the procedure was proper according to practice—Bell's Prin., 2287, note ( f); Dove Wilson's Sheriff Court Practice (4th ed.), 340. The case of M'Dermott v. Ramsay, cit. sup., only decided that a separate action was competent notwithstanding an alternative remedy. There was already a record, and there was no need to remit back to the Sheriff.

At advising—

Judgment:

Lord Justice-Clerk—The main dispute in the debate before us in this case was as to the competency of the procedure, the appellant maintaining that it was imperative that such proceedings must be by petition and answers, as in the case of an ordinary action. The contention was that poinding was not a process, and that therefore there was no depending process. The contention on the other side is that this is not an initial writ but a minute of compearance. I am satisfied that the Sheriff can dispense with the formalities in such a summary application as this, in which appearance is made where exceptional despatch is required, and that what was done by the respondent was only a step in proceedings already existing and not the raising of a new cause. Having considered the matter I adopt the latter contention as tenable, being satisfied that it is according to accepted and general practice. Mr Dove Wilson and Mr Graham Stewart all lay it down as well understood practice. It is quite evident that it is in the highest degree convenient that it should be so, and therefore as no case is made on the merits, which turn upon law only, no relevant facts being stated and no proof asked for, I would propose to your Lordships to adhere to the interlocutor of the Sheriff-Substitute.

Lord Young concurred.

Lord Moncreiff—The appellant maintains that this process is incompetent in respect that it is not framed in conformity with the provisions of the Sheriff Court Act 1876, which require every action brought in the ordinary Sheriff Court to be commenced by a petition containing a prayer, and having annexed an articulate condescendence and note of pleas-in-law.

If this were or intended to be a petition for interdict, the appellant's criticism

Page: 826↓

would probably be well founded, but the respondent's counsel points out that that is not its character. It is not an initial writ, but merely a minute of compearance in a depending process of poinding to which the provisions relating to the ordinary Sheriff Court do not apply. Such procedure is in accordance with the practice as stated by all the writers of authority on the subject that I am familiar with. Up to a certain point the Sheriff's duties in a poinding are ministerial; but when the poinding is reported they become judicial, and one competent form of raising the question of property in the goods poinded is compearance in the poinding.

Sheriff Guthrie, who has had large experience in Lanarkshire, so states the practice in note f to section 2287 of Bell's Prin., 10th ed.

Mr Dove Wilson, whose experience was equally great as Sheriff-Substitute in Aberdeenshire (from which county this case comes), states the practice to the same effect at p. 40 of the 4th ed. of his work on Sheriff Court Practice.

In the latest work on diligence, namely, that of Mr Graham Stewart, the practice is stated to the same effect at p. 354.

On the question whether the poinding is a process or merely a diligence I may refer to Lord Shand's remarks in Clark v. Hinde, Milne, & Company, December 18, 1884, 12 R. 347, at p. 354, 22 S.L.R. 237; and lastly in the older work of Mr M'Glashan, section 1907, p. 358, the practice is so stated.

I may also refer to the case of Scotland v. Lawrie, June 12, 1828, 6 Sh. 961, and to the analogous cases of sequestration for rent, of which the case of Lindsay v. Earl of Wemyss, May 18, 1872, 10 Macph. 708, 9 S.L.R. 458, is an example.

[ His Lordship then proceeded to deal with the merits.]

Lord Trayner was absent.

The Court dismissed the appeal, “of new sustain the objections for Alexander Wood and prefer him to the goods mentioned in the minute of compearance and note of objections for the said Alexander Wood.”

Counsel:

Counsel for the Appellant— Campbell, K.C.— Hunter. Agents— P. Morison & Son, S.S.C.

Counsel for the Respondent— Lippe. Agent— William Croft Gray, S.S.C.
1904