BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon v. Bruce & Co. [1897] ScotLR 34_633 (12 May 1897) URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0633.html Cite as: [1897] SLR 34_633, [1897] ScotLR 34_633 |
||
[New search] [Printable PDF version] [Help]
Page: 633↓
[Sheriff of Lanarkshire.
It is not a deviation from the statutory procedure, and forms no good objection to the competency of an appeal from the Sheriff under section 21 of the Personal Diligence Act 1838, that the defender in a petition for the recal of arrestments has not lodged answers though allowed by interlocutor of the Sheriff to do so.
Observed ( per Lords Adam, M'Laren, and Kinnear) that a mere deviation from the usual course of procedure is not equivalent to withdrawing a cause from the ordinary jurisdiction of the judge unless it proceed upon an agreement by the parties to such a departure.
William Gordon, builder, Glasgow, presented a petition in the Sheriff Court of Lanarkshire for the recal of arrestments used by John W. Bruce & Company, accountants, Glasgow, on the dependence of an action raised by them against the pursuer.
By interlocutor dated 13th March 1897 the Sheriff-Substitute ( Strachan) ordered service, appointed a diet for the hearing, and allowed the defenders to produce at said diet, if so advised, answers to the petition.
No answers were lodged.
On 16th March 1897 the Sheriff-Substitute ( Erskine Murray) recalled the arrestments on the pursuer finding caution to the amount of £300.
The defenders appealed to the Court of Session.
The Personal Diligence Act 1838 (1 and 2 Vict. cap. 114), sec. 21, enacts that it shall be competent for any Sheriff from whose books a warrant of arrestment has been issued, on the petition of the debtor or defender, duly intimated to the creditor or pursuer, to recal or to restrict such arrestment on caution or without caution as to the Sheriff shall appear just, provided that the Sheriff shall allow answers to be given in to the said petition, and shall proceed with the further disposal of the cause in the same manner as in summary causes, and his judgment shall be subject to review in the Court of Session.
When the case appeared in the Single Bills the pursuer and respondent objected to the competency of the appeal, and argued—The defender had failed to comply with the requirement of the statute by not lodging answers. The result of such failure was to withdraw the case from the ordinary course of judicial procedure, and the parties must be held to have agreed to constitute the Sheriff an arbiter, in which case his award was final— Dykes v. Merry & Cuninghame, March 4, 1869, 7 Macph. 603.
Argued for the appellants—This was a summary proceeding. The lodging of answers was optional, not imperative, under the section of the statute; and the appeal was competent.
Lord President—The section provides that the Sheriff shall allow answers to be given in, and shall proceed with the further disposal of the action in the same manner as with summary cases, and that his judgment shall be subject to review in the Court of Session.
Now, Mr Salvesen has not made out that if this had been an ordinary summary case it was incompetent, or extra cursum curiæ, for the Sheriff, no answers having been given in, to proceed to hear parties and to dispose of the cause. That being so, and the statute pointing to summary procedure as the criterion of procedure, I am
Page: 634↓
not satisfied that there has been any irregularity, or that the parties have so acted as to withdraw the cause from the ordinary jurisdiction of the Sheriff.
In this case I do not think that there has been any deviation from the procedure prescribed by statute. The Act provides—[ quotes section.]
I take that to mean that if the respondent moves the Sheriff for leave to lodge answers the Sheriff cannot refuse the motion. But then the application is to be dealt with in the same manner as summary causes, and it is a matter of ordinary practice that in summary causes a party to whom intimation has been made is entitled to be heard without the necessity of first lodging answers. If the question is merely as to the amount of caution, or again if it is merely as to the choice of a particular individual for the office, e.g., of judicial factor, answers are not necessary. When, on the other hand, the party contends that the application is incompetent or ill-founded on the merits it is proper that answers should be ordered.
The Court sent the case to the Summar Roll.
Counsel for the Pursuer— Salvesen. Agents— Gill & Pringle, W.S.
Counsel for the Defenders— A. J. Young. Agent— L. M'Intosh, S.S.C.
