Scottish Court of Session Decisions

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Cite as: [1910] SLR 185, [1910] ScotLR 185

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SCOTTISH_SLR_Court_of_Session

Page: 185↓

Court of Session Inner House First Division.

Wednesday, November 23. 1910.

[ Lord Skerrington, Ordinary on the Bills.

48 SLR 185

Aitchison

v.

M'Donald.

Subject_1Diligence
Subject_2Validity of Charge
Subject_3Club
Subject_4Party Charged not Party Named in Decree.

Sheriff — Process — Competency of Suspension of Charge in Bill Chamber — Value of Cause — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII., cap. 51), sec. 5 (5), and sec. 7.
Facts:

A decree for payment of a sum of money was obtained against a Club. A member and official of the Club was served with a charge bearing to be by virtue of the decree. He brought a suspension. Held that the charge was without warrant and that the Note must consequently be passed.

The Sheriff Courts (Scotland) Act 1907, sec. 5, enacts—“Nothing herein contained shall derogate from any jurisdiction, powers, or authority presently possessed or in use to be exercised by the sheriffs of Scotland, and such jurisdiction shall extend to and include—(5) Suspension of charges or threatened charges upon the decrees of Court granted by the sheriff, or upon decrees of registration proceeding upon bonds, bills, contracts, or other obligations registered in the Books of the Sheriff Court, the Books of Council and Session, or any others competent where the debt exclusive of interest and expenses does not exceed fifty pounds.” Section 7—“Subject to the provisions of this Act and of the Small Debt Acts all cases not exceeding fifty pounds in value, exclusive of interest and expenses, competent in the Sheriff Court shall be brought and followed forth in the Sheriff Court only, and shall not be subject to review by the Court of Session: … Provided also that nothing herein contained shall affect any right of appeal competent under any Act of Parliament in force for the time being.”

A decree for payment of £36, with interest thereon from a certain date, and expenses, was obtained in the
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Sheriff Court against a club, and a member and official of the club was charged on the decree for payment of that sum together with another sum of £36, 4s. 7d. of expenses. A suspension of the charge having been brought in the Bill Chamber, the competency of the suspension was objected to on the ground that in terms of section 5 (5), and section 7, of the Sheriff Courts (Scotland) Act 1907 the Sheriff had privative jurisdiction, and the suspension should have been brought in the Sheriff Court.

Held that the suspension was competent because (1) the value of the cause was really more than the actual sum proposed to be exacted, as the decision would settle the liability of the complainer for debts of the club generally, and (2) even with regard to the precise pecuniary value of the cause, that was more than fifty pounds, as the sum proposed to be exacted consisted not merely of the £36 and interest contained in the decree but of that sum plus £36, 4s. 7d. of expenses.

Headnote:

John M'Donald, wright and contractor, Adelphi Street, Bridgeton, Glasgow, obtained a decree in the Sheriff Court at Glasgow for payment of £36, with interest thereon from 27th April 1909, against the Scottish National Athletic Club, 36 Charles Street, Glasgow. Thereupon, on 26th August 1910, he served a charge, bearing to be in virtue of the said decree, on George Aitchison, 187 1 2 New Dalmarnock Road, Glasgow, a member and official of the club, for payment of the said £36 and said interest, together with £36, 4s. 7d. in name of expenses.

Aitchison brought a note of suspension in the Bill Chamber, and pled—“The said charge being inept, incompetent, and without any legal warrant, the complainer is entitled to suspension as craved.”

The Lord Ordinary on the Bills ( Skerrington) refused the note of suspension on the ground that owing to the principal sum being below £50 the suspension of the charge was within the privative jurisdiction of the Sheriff Court under the Sheriff Courts Scotland Act 1907.

The complainer reclaimed.

At the bar of the Inner House the respondent conceded that the charge was without warrant, but he objected to the competency of the suspension, and argued—Under the Sheriff Courts (Scotland) Act 1907, sec. 5, sub-sec. 5, the jurisdiction of the Sheriff was extended to and included suspension of charges upon Sheriff Court decrees, and under section 7, where the value of the cause, exclusive of interest and expenses, did not exceed fifty pounds, a suspension could be brought in the Sheriff Court only, and was not subject to review by the Court of Session. In the present case the value of the cause exclusive of interest and expenses was only £36, being the sum contained in the decree for payment obtained in the Sheriff Court. Accordingly the Sheriff Court had privative jurisdiction.

Answered for the complainer—The value of the cause exceeded £50, and accordingly the present suspension was competent. The complainer was not seeking to review the decree obtained in the Sheriff Court, and the suspension of the charge was an entirely new and separate cause, because the party charged was not a party to the action in the Sheriff Court. Therefore the value of the cause in the process of suspension was determined by the sum contained in the charge, viz., £72, 4s. 7d., consisting of the £36 found due in the decree plus £36, 4s. 7d. of expenses and this sum was over £50.

Judgment:

Lord President — The respondent in this case raised an action against a club entitled the Scottish National Athletic Club, in the Sheriff Court at Glasgow, that club having premises in Glasgow, in which action he concluded for decree of payment of £36, with interest thereon from the 27th day of April 1909. He got decree against the club for the said sum, together with another sum of £36, 4s. 7d. in name of expenses. I shall assume that that was a perfectly good decree, though there may be difficulties about it, because a decree against a club with a purely descriptive name without the conjunction of any individual with it seems to me to raise grave questions as to the working out of the decree. The holder of the decree then proceeded to give what he called a charge upon it. What he called a charge was that by means of messenger he charged George Aitchison, who is a member and an official of the club, to make payment of the sums named in the decree against the club, namely, £36 and £36, 4s. 7d. Aitchison then brings this suspension on the broad simple ground that he has been charged without warrant.

I think the matter is so simple as to be startling, and it amounts to this—a decree against A is not warrant for a charge against B, and therefore the respondent here, having got decree against the Scottish National Athletic Club, could not charge George Aitchison upon that warrant. But having raised his suspension in the Bill Chamber, Aitchison was met by the plea that the suspension was excluded by the provisions of the Sheriff Courts (Scotland) Act 1907; and to that plea the Lord Ordinary in the Bill Chamber gave effect. Section 5 of the Act provides—[ His Lordship here quoted the section— v. sup. in rubric]. I think that this plea is radically bad, and really there is quite a choice of grounds upon which that opinion may be founded.

In the first place, it does not seem to me that the charge here is a charge upon a decree of the Sheriff Court at all, because the whole point is that it was a charge absolutely without warrant. A charge upon a Sheriff Court decree must mean a charge which a Sheriff authorises, and certainly the Sheriff did not do that here. Secondly, there is the question of the value of the cause. There is something involved

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here which is rather more than the pecuniary value of the actual sum which it is proposed to exact; because if you can suppose that it could be right that Aitchison had to pay the £36 and the £36, 4s. 7d. only because a decree had been granted against the Scottish National Athletic Club for those sums, it follows that he must also pay any sum that anybody can recover against the club. We are then in that class of case where the question brought before the Court was whether a passenger on a tramcar ought to have paid a penny or twopence as his fare; and there it was held that the true question of the case was whether the tramway company was entitled to charge twopence or only a penny; and that question went far beyond the pecuniary value of the sum immediately involved. But thirdly, even if we were to pin ourselves to the precise sum here, no exception can be taken to the value of the cause, as it is not merely £36 and interest, but that sum plus £36, 4s. 7d., which is more than the required £50. That point must be decided upon the provisions of section 7 only, and not at all upon section 5 (5), which defines the jurisdiction of the Sheriff in suspending charges competent in his Court, and not the limit of the value of causes which must be brought before him.

I therefore think we must recall the Lord Ordinary's interlocutor and pass the note, which means that the suspension will have to be granted as a matter of course in the Court of Session; and probably the complainer will not take any further steps in the matter at all.

Lord Kinnear—I agree with your Lordship.

Lord Johnston I also agree.

Lord Mackenzie—I am of the same opinion.

The Court pronounced this interlocutor—

“Recal said interlocutor [ i.e., of 15th September 1910]: Remit to the Lord Ordinary on the bills to pass the note: Of new sist execution meantime and decern: Find the complainer entitled to expenses, and remit the account thereof to the Auditor to tax and to report to the Lord Ordinary on the Bills, to whom grant authority to decern for the taxed amount thereof.”

Counsel:

Counsel for the Complainer and Reclaimer— Forbes. Agents — St Clair Swanson & Manson, W.S.

Counsel for the Respondent— Macquisten. Agent— A. C. D. Vert, S.S.C.
1910