Scottish Court of Session Decisions

Lords Mackenzie, Cockburn, Jeffrey, and Cuninghame.—“We are of opinion, that the alleged deviations from the statute founded on in this case, are immaterial; and that the present case is not ruled by any of the precedents relied on by the suspender.

“I. The objection to the citation does not appear to us to have any sanction from the statute. The 3d section, which refers to this matter, contains a reference in its commencement to the schedule A, annexed to the act, relative to the form of the summons or complaint: But the enactment makes no reference to the form of citation; though there certainly is such a form among the schedules annexed to the act.

“All that is prescribed in the body of the act relative to citations is, that ‘a copy of the said summons or complaint, with the citation annexed, and also a copy of the account, if any, shall be served at the same time by the sheriff's officer.’ Now it is proved incontestably, that the enactment was complied with in the present case, as the copy of citation served upon the suspender has a copy of the account written on the back of it.

“That specialty seems to us decisive of this branch of the case. Indeed, even if the note attached to the form of citation thrown into the schedules, were entitled to all the force of an enactment, the specialty attending this case would validate the citation. For though the note in the schedule founded on by the suspender says, ‘If there is an account, the officer must serve a copy of it along with the copy of the summons or complaint; and add here (in the citation) ‘with a copy of the account;'—the latter part of the direction, from its nature, must be understood to apply only to cases where the account is separate from the complaint,—and not to cases where the account is either embodied in, or, as in the present case, indorsed on the very complaint served on the defender.

“The distinction between the present case and the decisions founded on by the suspender, is so clearly pointed out in the Lord Ordinary's note, that it is unnecessary to enlarge on them. In the case of Brown (16th February, 1833), it was admitted that no copy at all of the account had been served in any shape. In the case of Wallace (3d July, 1835), the service of the account, though mentioned in the execution, was denied; and while any reference to it was omitted in the citation, it certainly was not, as in the present instance, annexed to the copy of the complaint served. The case of M'Laren (12th December, 1835), seems to have been identical in its circumstances with Wallace's. Besides, all of these cases were determined in the Bill-Chamber, and not subjected to the more mature discussion which might have taken place on expede letters.

“II. The other objection to the decree in this case, founded on the allegation, that as the suspender was not personally cited, and not present at the calling of the case, the Sheriff had no power, by the 3d section of the act, to pronounce decree, but was only entitled to order a citation de novo of the defender,—appears to us to be ill-founded, both in fact and in law.

“The 12th section of the act appoints a book of causes to be kept by the sheriff, ‘setting forth the names and designations of the parties, and whether present or absent at the calling of the cause,'—and it is added that the book shall be ‘according to the form of schedule D;' to which there is appended a N. B. directing that ‘after the name of each pursuer and defender the letter P or A shall be added,' to denote the presence or absence of the parties. The record of the sheriff-clerk of Lanarkshire, we think, sufficiently attests the presence of the suspender at the time the decree complained of was pronounced. In the cause-book the names of both defenders are entered, and the letter P is added after the joint entry; which, we think, implies that they were both present, either by their own attendance, or by some of their family, as allowed by section 9th of the act. Where there are joint defenders, we are inclined to think that the necessary letter, when added after all of them, must be held applicable to each, and sufficiently demonstrates that they were all either present or absent, as the letter may denote. The clerk accordingly has expressly reported that this is the meaning of his book. This being the case, we think that faith ought to be given to the record, at least in this cause; and that it is for the clerk, and not for the private parties, to uphold the accuracy of the record.

“Farther, even if the pursuer (or rather if the sheriff's officer) in the first instance, made any mistake as to the citation, or if the sheriff-clerk was guilty of any inaccuracy or omission in his mode of keeping the cause-book, we are of opinion that both objections would only form such informalities or omissions as are expressly referred to, and provided for, by the 18th section of the statute, which enacts that the decree should not be reviewable in any form by a superior Court ‘either on the merits, or on account of any omission in the proceedings, or of any irregularity or informality, or on any ground or reason whatever.’

“We are disposed to think that this enactment applies to both the objections which have been urged in the present case; and that even the pleas of hardship set up by the defender are misplaced and untenable. Beyond all doubt, the defender got a citation to appear before the Justices on the day on which the cause was called; and if he did not get a copy of the account, he was bound to appear before the Sheriff and demand it. Again, even if there was any ambiguity in the entry in the cause-book, we are of opinion that this was no more than an informality on the part of the clerk, which is sufficiently corrected by his certificate; and that, framed as this small-debt act is, it did not entitle the pursuer to carry his opponent to a higher court, at an expense which might involve most parties in the condition of litigants in small-debt causes in absolute ruin.

“In this view, and looking to the whole scope and policy of the small-debt act, we think that the excluding clause is entitled to a very liberal interpretation. This is a law expressly intended to cut short all litigation. It was framed for recovery of the small debts generally claimable by the poorest and humblest members of the community. They are not only not allowed the aid of the higher practitioners in the law, skilled in forms, but such aid is excluded. The execution of the act is intrusted to the lowest and least qualified officers. In such a case, it would be lamentable indeed, if by any omission by clerks or officers, of some of the forms in the act (in the great bulk of cases not imputable to or discernible by the parties), a small-debt cause could be converted into a voluminous and expensive process before the Supreme Court. We doubt very much if any rules laid down in the interpretation of other statutes, the execution of which has generally been committed to functionaries of a higher or better informed class than those employed in the execution of the small-debt act, and which have not excluding clauses, framed in the very broad and peremptory terms which here occur, ought to govern the present case.

“It deserves notice too, that the Legislature has, in the statutes successively passed relative to the recovery of small debts before the Sheriff, gradually narrowed the powers of interference given to this Court. Thus, in the first act giving the Sheriff a small-debt jurisdiction, the exclusion was thus expressed:—‘That no decree given by any Sheriff, according to the forms and regulations of this act, shall be subject to advocation, suspension, or appeal, or any other form of review or stay of execution, other than hereinbefore provided; excepting only in an action of reduction in the Court of Session, on the ground of corruption or malice and oppression on the part of the Sheriff.’

“Here the Supreme Court is only excluded, if decree be given according to the forms and regulations of the act, and the case of prior or intermediate omissions in point of form, was not provided for. But in the last small-debt act the exclusion is far more comprehensive and rigid, being expressed thus:—‘That no decree given by any Sheriff, in any cause or prosecution raised under authority of this act, where the Sheriff shall not have ordered any pleadings, arguments, minutes, or evidence, to be reduced to writing, shall be subject to advocation, suspension, or appeal, or any other form of review or stay of execution, other than herein before provided, either on the merits, or on account of any omission in the proceedings, or of any irregularity or informality, or on any ground or reason whatever, excepting only by appeal on the ground of corruption, or malice and oppression on the part of the Sheriff, to the next Circuit Court of Justiciary, or where there are no Circuit Courts, to the High Court of Justiciary at Edinburgh.'

“It is plain, from the contrast of those two enactments, that the latter was intended to be as broad and as universally applicable as possible; and we doubt whether a court of law be entitled to limit its application, by any nice implication, that there are some omissions, which take cases manifestly originating solely under the act, altogether out of its operation.

“We are the more impressed with this view of the case, by the consideration, that in the great bulk of pretended omissions and informalities complained of under the Small Debt Act, parties, under its other enactments, are not left without remedy. Thus, by the 7th section of the act, a party against whom any decree in absence has been pronounced, must be charged after the decree, on an induciæ of six days, to pay the sum contained in the decree; and within the days of that charge, he has it in his power to get the case reheard on consigning the amount of the sum decerned for. This is probably all the remedy the act intended to give parties. If present, they are bound to state at once all their complaints, both in point of form, and on the merits, to the Justices. If absent, they were bound to apply for a rehearing. When parties will not take either of these courses, it may be questioned if they can ever qualify any strong case for the interposition of a higher Court.

“No doubt a case may occur in which a party is the victim of a false and fabricated citation, or has been marked as present in the record-book, when he has really been absent, and so has got no charge or intimation of the proceedings. But in such a case the Supreme Court must trust to the record, upon any appeal taken in the present form; and, if the record is false, the party affected may possibly have some remedy against the clerk, Sheriff-officer, or others accessory to the wrong, which he must follow out in proper form, by an appropriate complaint or action of damages at common law, such as the statute does not exclude. Without giving any opinion as to that or any other remedy competent to parties, we think that it would be most dangerous to hold a party entitled to involve his opponent in a process of suspension before the Supreme Court, when the appeal is founded on alleged omissions, which we think expressly excluded by the act, from being tried in the form now attempted.”

Lord Fullerton.—“On the subject of the first objection, I concur in the preceding opinion.

“It appears to me, that in this point, the statute has in essentials been strictly complied with. The summons and the copy of the account were unquestionably served on the party; and the execution of the officer bears that they were so served. Every thing, then, was done in terms of the statute which was necessary, to warn the party that he was called into Court, and to apprize him of the demand made against him. And there being no doubt that the account was served, the omission to insert the statement of its being served in the copy of the citation left with the party, seems to me to afford no relevant ground of reduction. For, in the first place, I do not think that the reference in the body of the statute to the schedule, is in this particular so clear as to render it part of the imperative enactment; and, secondly, I think that this being at best a mere matter of form, no way essential to the sufficiency of the notice to be given to a defender, the accidental neglect of it is just one of the omissions or irregularities falling within the 18th section, and is consequently inadmissible as a ground of challenge. The second objection appears to me more formidable; and though in part agreeing in the preceding opinion, I cannot adopt the conclusion that the objection ought to be repelled without further investigation.

“The pursuer (the defender in the original action) was not personally cited; he was cited at his dwelling-house. This is established by the execution. In regard to such a citation, the provision of the statute is, ‘But if the defendant shall not appear, he shall be cited a second time,' &c. One citation merely at the dwelling-house then, is not a citation warranting any procedure in the action, unless the defender appear on that first citation. But it follows from this, that in any case, in which the citation is merely at the dwelling-house, and is not followed by a second citation, the question whether or not the party has been properly brought into Court, or the action raised in terms of the statute must depend on the question of fact, whether or not he appeared on the first citation. Now, in this case the party, in the first place, maintains that the procedure-book does not prove that he did appear; and, secondly, he avers, and offers to prove that he did not appear.

“On the first of these points I am rather inclined to concur in the preceding opinion. I think that the entry in the procedure-book, as explained by the report of the clerk, may be received as evidence of his appearance in Court. But it appears to me, that it is evidence which the pursuer may redargue by positive proof in the present action of reduction. For the question of his presence or absence is not a mere question of form in the proceedings of ‘an action raised under the authority’ of the act: it substantially involves the question, whether the party was legally cited, that is, whether the action was raised under the authority of the act or not. And looking at the nature of the action here,—an action for reducing the decree, and all the minutes, grounds, and warrants, &c.—the summons appears quite sufficient to let in the challenge of the accuracy of the entry in the procedure-book. On these grounds, I think that the objection cannot be repelled without some further investigation of the truth of the pursuer's averment.”

Lords President, Gillies, Corehouse, and Moncreiff.—“In this case an action was brought by Harrison against M'Ewan and Parker, under the act 10th Geo. IV. c. 55, commonly called the Small Debt Act, before the Sheriff of Lanarkshire, for the sum of £8, 6s. 8d., in which the Sheriff decerned for £3, 17s. 5d., with 7s. 1d. of expenses. That decree is now brought under reduction by M'Ewan, on two grounds: 1st, That the action was not raised under the authority of the act, in respect the citation and service-copy of the summons were not given to M'Ewan in the form prescribed; and 2dly, Because M'Ewan, who it is said was absent at the first calling, was not cited again, in terms of the 3d section of the statute.

“The act, after specifying the form of the summons, provides, that being signed by the Sheriff-clerk, it shall be a sufficient warrant for summoning the defender, and that a copy of the summons, with the citation annexed, and a copy of the account, if any, shall be served at the same time on the defender personally, or at his dwelling-place. It is also provided, that the officer shall either return an execution of citation signed by him, or shall appear and give evidence on oath of the citation having been duly made.

“In this instance there was a summons, to the form of which no objection is made, which was served upon the party. There was also an account, a copy of which was written on the back of the summons, and an execution was returned, which is also regular. But in a schedule (A, No. 2) subjoined to the act, a form of citation is given in the following terms:—‘E. F., defender above designed, you are hereby summoned to appear before the Sheriff, in the matter, and at the time and place, and under the certification set forth in the above copy of the summons or complaint against you. This Notice served upon day of,' &c. To the word Notice there is added, in a note, ‘If there is an account, the officer must serve a copy of it along with a copy of the summons or complaint, and add here, “with a copy of the account.”’ This last direction was disobeyed by the officer. He served the summons, and there was a copy of the account on the back of it; but the citation left with the defenders did not bear that a copy of the account was served.

“It appears to us that this was a fatal objection to the whole procedure; for, in consequence of the defect in the citation, the action was not raised, nor the decree pronounced under the authority of the statute.

“Harrison, the defender in the reduction, pleads, that the schedule, No. 2, is not referred to expressly in the enacting clause of the statute; and, therefore, although the schedule is given as an example of the proper form of citation, for the convenience of those who raise such actions, it is not imperative upon them, and any other form of citation may be used which is in substance the same. But, in the first place, we are of opinion, that the citation here is not in substance the same with that prescribed by the statute; because the party was not put upon his guard that any copy of the account was served upon him at all, by which he might have been misled; for he might have overlooked the writing on the back of the summons, or he might not have been fully aware that it related to the matter at issue.

“2dly, We think that the schedules annexed to the Act of Parliament are to be considered as part of the act itself, and are not given as forms which may or may not be followed, at the option of the pursuer. On the contrary, the words are imperative—‘the officer must serve a copy of the account, and add in the citation (that is, must add in the citation), with a copy of the account.’

“But if these words are imperative, and as obligatory as any thing contained in the body of the statute, no court is entitled, on the plea of equity, to disregard them. The statute, which has swept away all the ordinary forms of law for the benefit of pursuers in the small-debt court, must be observed to the letter, otherwise the benefit which it confers cannot be claimed. It would be attended with the most mischievous consequences, if any departure from the forms prescribed were to be dispensed with, because they may appear unnecessary or immaterial. Mistake would follow mistake, and one blunder be excused after another, till defenders could have no security for their rights in these summary proceedings. The object of the statute is to prevent unnecessary and expensive litigation; but there would be no end to lawsuits, if it were competent to discuss before this Court, whether a deviation from the form prescribed was material or immaterial, or whether it was remedied by an alleged equipollent which a party had adopted at his own hand. An implicit obedience to the directions given is the only security against this evil.

“The principles laid down by the Court in the cases of Brown and Wallace, though in neither the species facti was precisely the same as in this instance, are authorities in support of what has now been said. But the case of M'Laren is a case exactly in point. In that case the very same defect occurred in the citation which is founded upon here, and it was held to be fatal.

“The second objection is equally, if not more material. It is provided, in the same section of the statute, that ‘if the defender shall not appear, he shall be cited a second time personally, or at his dwelling-place, upon the words de novo being either subjoined to the original summons, and signed by the Sheriff-clerk, or written in the procedure-book kept by the clerk, and signed by the Sheriff, to appear at the next court after the date of the said citation.’

“This is a very important privilege conferred on defenders, for otherwise decrees might be stolen out against them when they had never heard of the summons, or were necessarily prevented from attending at the first calling. To ascertain on the record the material fact, whether the party is present or absent, in Schedule E the form of the procedure-book is given, to which there is added—‘N. B. After the name of each pursuer and defender let the letter P. or A. be added; in order to mark whether the party was present or absent when the cause was called.’ In the present case, neither the letter P. nor the letter A. appears after the name of M'Ewan. The letter P. is in the procedure-book, and it is said to apply to all the defenders. But that is not a compliance with the statute, which requires that t shall be added to the name of each pursuer or defender. And this is the more important, because M'Ewan avers and offers to prove, that in point of fact he was not present himself, and he denies that any person was present on his behalf. It is pleaded, that according to the practice of the Sheriff-court of Lanarkshire, the single letter P. or A. applies to all pursuers or defenders. But certainly the practice of a Sheriff-court cannot justify a plain contravention of the statute.

“We think there is nothing in the defence, that the present summons is incorrect in referring to the Schedule B, instead of the Schedule D. The mistake is not in the summons. It is a typographical error in the Act of Parliament itself, the section where it occurs being quoted in the summons, and for which the pursuer M'Ewan was not answerable. On the contrary, he corrects the mistake, by terming the schedule not B, but ‘the schedule referred to in the twelfth section,” which unquestionably is the Schedule E.

“On these grounds we are of opinion that this action of reduction is competent, and that it is well-founded on the merits. The original action was not regularly brought into Court by the first citation; and although it had, if neither the defender nor any one authorized by him appeared when the cause was called, it was incompetent for the Sheriff to decern against him without a second citation. But the evidence of his being present, required by the statute, is wanting.”

The cause was this day again put out for advising.

Lord Justice-Clerk.—Although approving of the judgments in the cases of Brown, Wallace, and M'Laren, yet I think the Lord Ordinary's interlocutor in the present case right, and that the objections to the decree in question ought to be repelled. I agree with Lord Mackenzie, and the Judges concurring with him, on both the points in dispute. Under the Small Debt Act, no doubt, parties are to be brought regularly into court; but was there here any material deviation from the statute, when a copy of the account was written on the back of the summons? I think not.

Lords Glenlee, Meadowbank, and Medwyn concurred.