Scottish Court of Session Decisions

This was a suspension at the instance of William Hebenton, flesher in Brechin, of a threatened charge on a decree of the Burgh Court of Brechin obtained against him in an action at the instance of David Milne, tacksman of the Petty Customs, Shamble, and Weigh-house dues of the Burgh of Brechin. It was contended by the defender

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Hebenton, in the Burgh Court, as a preliminary plea, that the summons was inept, being in the form prescribed for Sheriff-Courts by the Act of 1853; whereas it ought to have been in the form prescribed by the Act of Sederunt of 13th February 1845, or Act of Sederunt of 18th July 1851, and no condescendence was annexed as required by the latter Act. The Bailie (Craig) repelled this plea, holding that it was to be assumed that the form of process prescribed in 1853 for Sheriff-Courts was applicable to Burgh Courts. After proof, the Bailie found Hebenton liable in certain sums to the pursuer. In the suspension at Hebenton's instance it was now pleaded, in addition to the objection to the form of the summons, that two of the interlocutors were not duly authenticated by the Judge's signature; that the proof was irregularly taken, in the shape of notes instead of in the form of a deposition; and that the proof was not authenticated by the signatures of the witnesses and magistrate on each page.

The Lord Ordinary (Barcaple) pronounced this interlocutor:—“Finds that the summons is libelled in an incompetent form according to the legal rules of procedure in Burgh Courts: Finds that the proof on which the judgment of the Inferior Court proceeded was incompetently taken, and not duly recorded or authenticated, having regard to the rules of law in that matter applicable to Burgh Courts; on these grounds sustains the reasons of suspension, suspends the letters and charge simpliciter, and decerns; reserving to the respondent his right to bring a new action in the premises in competent form: Finds the respondent liable in expenses,” &c.

“Note.—The summons is framed according to the form prescribed by the Sheriff-Court Act 1853, 16th and 17th Vict., cap. 80. That would have been a form altogether incompetent in any court in Scotland before the passing of that Act, and the Statute only authorises its adoption in the Sheriff-Courts. The judgment (in the Burgh Court) sustaining it as competent refers to the Act 6th Geo. IV., cap. 23. By section 7 of that Statute, the Acts of Sederunt which it authorises the Court of Session to pass in regard to Sheriff-Courts are made equally applicable to the courts of royal burghs, and the power to make such Acts of Sederunt was continued by 1st and 2d Vict., cap. 119, sec. 31. But the former Statute had relation to the fees of the clerks of Court, and the Act of Sederunt which followed upon it, on 27th January 1830, has reference to that matter. The form of proceedings in Sheriff and Burgh Courts had been already dealt with in separate Acts of Sederunt on 12th November 1825, following on the Judicature Act. The Lord Ordinary cannot discover any ground for holding that the new forms of summons introduced by statute into the Sheriff-Courts has been in any way imported into the Burgh Courts.

—In the same way, there has been adopted in this case the form introduced by the Sheriff-Court Act of 1853 of taking evidence, by the Judge taking notes of the evidence. This is materially different from the mode of taking depositions sanctioned by law prior to that Statute. The functions with which the Sheriff was thereby vested have not been conferred by the Legislature upon Judges in other inferior courts, and it does not appear that they can be assumed without statutory authority.

“The suspender also objected that the interlotutors are not duly subscribed by the Judge. There is certainly great looseness and departure from ordinary practice in this matter. But the Lord Ordinary is not disposed to hold that it amounts to a fatal defect. The Judge signs at the end of each interlocutor, and in every instance the whole interlocutor is written on the same sheet.”

Milne reclaimed.

Watson, Solicitor-General Millar) with him, for reclaimer.

Fraser and Asher, for respondent, were not called on.

The Court adhered.