Scottish Court of Session Decisions

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Cite as: [1912] ScotLR 872, [1912] SLR 872

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SCOTTISH_SLR_Court_of_Session

Page: 872↓

Court of Session Inner House First Division.

(Single Bills.)

Wednesday, June 26. 1912.

49 SLR 872

Whyte, Ridsdale, & Company, Petitioners.

Subject_1Diligence
Subject_2Decree
Subject_3Charge on Court of Session Decree
Subject_4Service of Charge by Post — Competency.
Facts:

A charge upon a Court of Session decree cannot be served by post.

The holders of an extract-decree for £55 odd, obtained in the Court of Session against a defender resident in Thurso, presented a petition for warrant to serve the charge by post, or otherwise to grant warrant to a sheriff-officer to serve it.

The Court granted the latter alternative.

Observations ( per Lord President) as to the scarcity of messengers-at-arms.

Headnote:

Whyte, Ridsdale, & Company, importers, London, the holders of a decree obtained in the Court of Session against a defender resident in Thurso, presented a petition to the First Division in which they craved the Court to grant warrant to serve the charge by post in the manner prescribed by the Citation Amendment (Scotland) Act 1882 (45 and 46 Vict. cap. 77), or otherwise to grant warrant to a Sheriff-officer to serve it.

The petition stated—“That the petitioners have obtained decree in absence in an action at their instance in the Court of Session against William Murray, cycle agent, Thurso, for payment of £55, 9s. 11d. sterling with expenses, which decree they extracted on the 7th day of June 1912. That at the time of the passing of the Citation Amendment (Scotland) Act 1882 there were sixty-six messengers-at-arms practising in Scotland. There are now only thirty-four, of whom fifteen are in Edinburgh and Glasgow. That there is now no messenger-at-arms in Caithness, the nearest messenger-at-arms being in Inverness, a distance of about 100 miles. That the nearest sheriff-officer is in Wick, which is distant about 20 miles from Thurso.

By the Court of Session Act 1868, sec. 19, services of summonses and citations of witnesses may be made by sherifl-offlcers in counties or districts of counties where there is no resident messenger-at-arms, but no provision is made for the execution of diligence in similar circumstances.

By the Sheriff Courts (Scotland) Act 1907, sec. 49, it is provided that ‘Where a charge is necessary upon a decree for payment of money granted in the Small-Debt Court and the place of execution of the charge is more than 12 miles distant from the seat of the Court where such decree was granted, a charge may be given by post in the manner prescribed by the Citation Amendment (Scotland) Act 1882.’”

The prayer of the petition was as follows—“May it therefore please your Lordships to grant warrant to charge the defender the said William Murray upon the said decree by post in the manner prescribed by the Citation Amendment (Scotland) Act 1882; and further, to grant warrant to any Sheriff-officer in Caithness on the expiry of said charge to carry into execution all legal diligence competent to follow upon said charge should the same expire without payment having been made; or otherwise to grant warrant to any sheriff-officer in Caithness to charge the said William Murray upon the said extract-decree at the petitioners' instance, and thereafter to carry into execution all legal diligence competent to follow upon said charge should the same expire without payment having been made; to dispense with the reading of the minute book, and to authorise a certified copy of the interlocutor to follow hereon to be used in place of extract; or to do otherwise as to your Lordships shall seem proper.”

Page: 873↓

The opinion of the Court (the Lord President, Lord Kinnear, Lord Johnston, and Lord Mackenzie) was delivered by

Judgment:

Lord President—I should like to bring to your Lordships' notice a serious grievance of the lieges disclosed by the petition. The petitioners obtained decree in absence against a defender resident in Thurso. They extracted the decree and desired to do diligence on that decree. In old days there would have been no difficulty, because the serving of the charge would have been effected by a messenger-at-arms, but owing to the alterations introduced by the Citation Act of 1882 (45 and 46 Vict. cap. 77) the calling of a messenger-at-arms no longer pays. There are now only thirty-two messengers-at-arms in Scotland, fifteen of these being in Edinburgh and Glasgow. Thus there are many places where such a messenger cannot be obtained except at considerable expense. In the present case it would be necessary to incur the expense of bringing a messenger-at-arms from Inverness. The Act provides for the service of summonses by post, but there is no provision for the serving of a charge by post. Any alteration in the law must be brought about by Parliament. All that your Lordships can do is to grant the prayer of the petition so far as to authorise a Sheriff-officer to act as a messenger-at-arms in the present instance.

The Court pronounced this interlocutor—

“Grant warrant to any sheriff-officer in Caithness to charge the defender William Murray, named and designed in the petition, upon the extract-decree at the petitioners' instance mentioned in the petition, and thereafter to carry into execution all legal diligence competent to follow upon said charge, should the same expire without payment having been made: Dispense with the reading of the minute book, and authorise a certified copy of this interlocutor to be used in place of an extract.”

Counsel:

Counsel for Petitioners— Hon. W. Watson. Agents— Macpherson & Mackay, S.S.C.
1912