Scottish Court of Session Decisions

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), section 6, and First Schedule, Rule 50, are quoted in the rubrics ( supra).

Leggat Brothers, printers, Port-Dundas, Glasgow, pursuers, raised in the Sheriff Court at Glasgow an action of furthcoming against Moss' Empire, Limited, of 23 York Place, Edinburgh, having a place of business in Sauchiehall Street, Glasgow, arrestees, and George Gray, music hall artiste, “whose only known address is The Savage Club, Adelphi Terrace, London,” the common debtor.

The claim or demand of the pursuers was—“That there should be made available to them for satisfaction of—(First) The sum of £125 sterling, with interest thereon from the 19th day of January 1910, (Second) the sum of £20, 0s. 11d. sterling of expenses, and (Third) for the expenses of this process, 145 preference shares and 100 ordinary shares held by the defender, and registered in the name of George Herbert Gray, of Moss' Empires, Limited, and which shares are numbered as follows, … the said sums of £125 sterling, with interest as aforesaid, and £20, 0s. 11d. sterling of expenses, being the amounts contained in an extract decree obtained by the pursuers in the Sheriff Court of Lanarkshire at Glasgow in an action at their instance against the defender George Gray, upon the dependence of which action the pursuers on the 18th day of February 1910 used arrestments in the hands of the defenders Moss' Empires, Limited.”

The pursuers accordingly craved the Court to grant warrant to a stockbroker to sell the shares or such a number as might be sufficient to satisfy their claim.

The pursuers in evidence of their claim produced the extract decree, which was in the following terms—“At Glasgow, the fifteenth day of June, and fourth day of July Nineteen hundred and ten, in an action in the Sheriff Court of the County of Lanark at Glasgow, at the instance of Leggat Brothers, printers, one hundred and seven Bishop Street, Port-Dundas, Glasgow, pursuers, against George Gray, music hall artiste, presently performing at The Palace Theatre of Varieties, Main Street, Gorbals, Glasgow, defender, the Sheriff decerned the defender to pay to the pursuers One hundred and twenty-five pounds sterling, with interest thereon from the Nineteenth day of January Nineteen hundred and ten, and twenty pounds and elevenpence of expenses: And the Sheriff grants warrant for all lawful execution thereon by instant arrestment, and also by poinding after a charge of seven free days if the defender is within Scotland, and fourteen free days if furth thereof.”

The pursuers also produced the execution of the arrestments on the dependence referred to in their claim.

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Defences were lodged in the action of furthcoming for George Gray, the common debtor. His defence was threefold.

He averred—“At the time said action, i.e., the action of constitution, was raised, and during the dependence thereof, there was no jurisdiction to entertain it. No such action was served upon him, and he gave no instructions to anyone to defend such an action. The said decree is inept, irregular, and illegal, and the said decree does not constitute any debt against this defender. It is referred to for its terms, beyond which no admission is made.

He also averred—“The execution of arrestment is referred to for its terms, beyond which no admission is made. Explained that the said arrestments are inept, invalid, and illegal, in respect that they were used against a foreigner without jurisdiction having been constituted against him. Explained that the defender was not aware of said arrestment until the present action was raised, no notice of these or of any arrestments having been made to him.”

In the third place he made averments to the effect that the shares arrested were not really his, but fell under a postnuptial marriage contract which he was bound to make in virtue of an antenuptial agreement. On this third defence the case is not reported.

The pursuers pleaded, inter alia—“(1) No relevant defence. (4) The defender George Gray being indebted to the pursuers in the sums mentioned in the condescendence, and the said shares having been duly attached by arrestment, warrant to sell and apply the proceeds as craved, and authority to register should be granted with expenses.”

The defender pleaded, inter alia—“(1) The action is incompetent. (2) The action is irrelevant. (4) No jurisdiction in the action of constitution or in the action of furthcoming following upon it. (5) Said arrestments being inept, invalid, and illegal in respect they were used on the dependence of an action against a foreigner without jurisdiction having been constituted against him, the action should be dismissed. (6) Said arrestment being inept, invalid, and illegal in respect of no service, either of the action of constitution or of the warrant to arrest, the action should be dismissed.”

On 16th November 1910 the Sheriff-Substitute ( Fyfe) pronounced this interlocutor—“Repels the first plea for defender, the common debtor; sustains pursuers' first plea; grants leave to appeal.’

Note—“Strictly speaking, as I have sustained pursuers' plea to the relevancy of the defence, I should remit to a stockbroker to sell the shares, but that would not be an appealable interlocutor, and it would be obviously useless to consider the competency or the relevancy of the defence if the shares have been sold. Both parties accordingly request that I should at present pronounce only upon the first plea stated for each party, and grant leave to appeal.

“I have no hesitation at all in repelling the defender's first plea. The action is an action of furthcoming following upon a decree of this Court. If the decree is to stand, the validity of the execution of arrestment is not challenged. The only ground for the plea of incompetency is that jurisdiction was not founded in the action in which decree has been granted. In other words, the defender now wants to get behind the decree. That he cannot competently do in this Court either in the present process or any other. A decree of Court cannot be reduced by exception, for it is not a deed or writing in the sense of Rule 50 of The Sheriff Courts Act 1907. A direct action of reduction not being competent in the Sheriff Court, the only notice which I could take here of the defender's first and fourth pleas would be to sist this process to await the issue of an action in the Court of Session to reduce the decree.

The defender, however, does not ask the process to be sisted, but wants to challenge the decree in this Court, and that, in my opinion, is clearly incompetent.”

The defender appealed, and argued—It was necessary to constitute jurisdiction against the common debtor, but this had not been done. There had been no arrestment, jurisdictionis fundandæ causa, in the action of constitution, and accordingly the arrestment on the dependence and the decree of 12th July 1910 were invalid. The decree should be set aside, ope exceptionis, under Rule 50 of the First Schedule to the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51). Even if that decree could not be so set aside, the furthcoming was a fresh process and should have been preceded by arrestment jurisdictionis fundandæ causa— Wightman v. Wilson, March 9, 1858, 20 D. 779; Harvey, Hall, & Co. v. Black & Son, June 21, 1831, 9 S. 785; Burn v. Purvis, December 13, 1828, 7 S. 194. At the most Burns v. Munro, July 18, 1844, 6 D. 1352, merely decided that it was not necessary to found jurisdiction afresh if the furthcoming were raised in the Court of Session. The Sheriff Courts Act 1907, section 6, had not taken away the rule of Wightman. Reference was also made to Graham Stewart on Diligence, p. 228.

Argued for the pursuers and respondents—The decree of 12th July was a decree in foro, and could not be set aside ope exceptionis. The furthcoming was merely ancillary to the arrestment on the dependence. Wightman ( cit. sup.) was decided prior to the Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. cap. 70). By that Act, section 47, an action of furthcoming was declared competent before a Sheriff, to whose jurisdiction the arrestee was subject, and the common debtor did not require to be subject to the jurisdiction, but provision was made for his citation. The provisions of section 6 of the Act of 1907 were similar, except that under them even citation of the common debtor was unnecessary.

At advising—