United Kingdom House of Lords Decisions

In the year 1844 the Appellant brought an action of reduction, in the Court of Session, of a decree for payment pronounced against him by the Sheriff of Sutherlandshire under the above statute, and of a decree of forthcoming upon arrestments used upon the dependence of the action in which the decree for payment had been pronounced. The chief ground upon which this action of reduction was rested, was an allegation that the Appellant was not resident in the county of Sutherland, and therefore the Sheriff had no jurisdiction to pronounce the decrees.

The Respondent denied the allegation of non-residence, and averred that the Sheriff had pronounced the decrees after hearing evidence upon the subject; and pleaded that the action was incompetent, as review of decrees under the statute, by the form of reduction, was excluded by the statute, and that it was further excluded by the Appellant having appeared in the action of forthcoming, and pleaded the want of jurisdiction, whereby he had prorogated the jurisdiction.

The Lord Ordinary (Ivory) on the 22nd November, 1844, repelled the defences, “so far as they impugned the competency of the action on alleged personalis exceptio against the pursuer, in bar of his proceeding therein,” and added to his interlocutor the following note:—

“The Lord Ordinary would have been disposed to report this case to the Court, in order that a question of such general concernment in the construction of the Sheriff's Small Debt Act might at once have been settled by an authoritative judgment. As both parties, however, concurred in asking a deliverance on the case as it stands, he has not thought himself entitled to refuse it.

The question does not, as has generally been the case, turn upon any point of mere nice technicality. It involves

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considerations of deep and substantial importance, and cannot be decided without materially affecting the whole scope and operation of the statute.

Now, to the Lord Ordinary, it seems impossible to bring the proceedings which are here submitted to challenge within the protection of the statute. No doubt the words of its 30th and 31st sections are very broad. But the Lord Ordinary cannot think it was thereby meant to extend the powers which the Sheriff is entitled to exercise, to a case where the party has no domicile within the county, or to authorise the Sheriff, under any circumstances, to pronounce sentence, or at all exercise his judicial functions, in reference to persons ‘ without his territory.’ Unless it was so, however, this strikes at the root of the whole matter, Ersk. 1, 2,16. For otherwise the cause was not one of which it can be said that it was either ‘raised’ or ‘decided under authority of this Act.’ In this view, after an anxious study of the whole anthorities, the Lord Ordinary cannot distinguish between the case now under consideration, and that of Scott, 2nd July, 1832.

It is said that the pursuer is barred by having appeared before the Sheriff, from now maintaining that the latter had no jurisdiction. But the decree originally pronounced against the pursuer was a decree in absence. And unless that decree can be maintained on its own strength as a competent and valid proceeding, the whole superstructure subsequently reared upon it must fall to the ground. Besides, even afterwards, when the pursuer did appear, he did so, as seems to be admitted, only to plead the want of jurisdiction, and the offering of a declinature, is so far from importing an acquiescence in the Judge's jurisdiction, that it is an express disowning of it.— Ersk., 1, 2, 27˙

Perhaps the strongest consideration that can be offered in support of the defender's plea is, that the Sheriff must necessarily have jurisdiction to dispose of all such cases of

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declinature, and that his judgment on such a question ought therefore to be as conclusively final under the statute, as his judgment on the merits. But the Lord Ordinary cannot hold that the Sheriff could thus be supported in any undue and usurped extension of his jurisdiction, beyond his proper territory. It would lead to the most extraordinary conflict between the courts of different counties. And then, in such circumstances as here occur, just suppose that the summons before the Sheriff had, on the face of it, described the party residing in Fifeshire,—could it have been maintained for a moment that the proceeding was entitled to protection; on the contrary, the Sheriff could not have sustained his jurisdiction in such a case, without doing violence not only to the spirit and intendment of the statute, but to every fundamental principle of the law of jurisdiction. But it comes to the same thing in principle if the fact truly was, and shall be established to have been, that the party had (as he alleges) possessed no actual residence or domicile within the county for a number of years. And the pursuer's allegation to this effect being relevant, it must meanwhile be held pro veritate, in the question of competency.

The Lord Ordinary is not moved by the late case of Rankine, 7th December, 1843. The objection is not here to mere ‘omission, or irregularity, or informality in the citation,’ &c., or even to ‘defect of jurisdiction,’ as arising out of these or out of any other such like grounds. It rests on a total and absolute nullity out and out of everything that took place when put forward in the light of a proper judicial proceeding. The Sheriff, in truth, was not, in the sense of the statute, entitled to the character of Judge at all. His court was not forum competens. The cause was not a cause within ‘the authority of the statute.’ The whole proceedings' were coram non judice, and so were void ab initio,

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just as much as if they had occurred before a party not holding the judicial character.

As to the remedy of appeal to the Court of Justiciary, the Lord Ordinary does not think that in such circumstances it was incumbent on the pursuer to resort to it. Sim, 24th February, 1831. And moreover, that remedy does not seem by the statute to be exclusive of the party's other common law remedies;—the case, in this respect, falling to be decided on the strength of section 30, which contains the only enactment to be found in the statute that is truly exclusive of review. Now, 1st, That section excludes review only where the decree has been given in a “cause or prosecution decided under authority of this Act.” 2nd, The words in which it so excludes review are nowise broader than those which formerly occurred in 10 Geo. IV., c. 51, sec. 18, unless in so far as (to meet such cases as Brown, 16th February, 1833 ; Wallace, 3rd July, 1835 ; Maclaren, 12th December, 1835 ; and M'Ewan, 9th March, 1838,) they include irregularity or informality “in the citation” as well as in the ‘proceedings.’ 3rd. Neither do they, any more than those of the corresponding enactments in 10 Geo. IV. (for words ‘any ground or reason whatever’ occur in both acts,) exclude review on “ incompetency or defect of jurisdiction,” at least not otherwise than as these grounds of review may have originated in mere omission, irregularity, or informality. And, 4th, Any implication to be drawn even from sec. 31, as regards the allowance of appeal to the Justiciary may reasonably be met, and the expression of the statute be satisfied rather by construing the “incompetency and defect of jurisdiction” there mentioned as going no farther than those causes of incompetency, &c. pointed at in the precedent excluding clause, (or perhaps its reference to such jurisdiction as if created under sec. 26,) than by extending them so as to violate all principle by letting in the Sheriff

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to proceed against parties not subjected to his jurisdiction at all under the statute, and wholly beyond his territory. Indeed, it might very well so happen that a party resident beyond the Sheriff's jurisdiction,—perhaps in a foreign country,—should never hear of the decree taken out against him until long after all power either of obtaining a rehearing before the Sheriff, or of submitting the Sheriff's judgment to review by way of appeal, had been lost by lapse of the statutory period allowed for the purpose.”

The Court, upon a reclaiming note for the Respondent, (on the 22nd February, 1845,) “altered the interlocutor of the Lord Ordinary, found that the only competent Court of appeal in the case was the Circuit Court of Justiciary, and dismissed the action.”

The appeal was heard ex parte, the Respondent having neither lodged a printed case nor appeared by counsel.

Mr. Anderson for the Appellant enlarged upon the grounds for the appeal which appear in the note of the Lord Ordinary, and cited in support of his argument, Scott v. Anderson, 4 Bell's Ap. Ca. 197; Wallace v. Hume, 13 S. & D. 1034; Campbell v. Young, 13 S. D. 535; Brown v. Richmond and Co., 11 S. D. 407; and Campbell v. Brown, 3 Wil. & Sh. 441.