Scottish Court of Session Decisions

In an action raised in the Court of Session in December 1883 by Andrew Clark, S.S.C., against Mrs Margaret Jack Field or Monteith for payment of an account alleged by him to be due to him by her, decree of absolvitor was pronounced by the Lord Ordinary in March 1884, and subsequently adhered to by the Second Division in June thereafter. Decree for the defender's account of expenses was thereafter pronounced on 3d July following, in name of William Paterson, solicitor, as agent disburser for the defender. This decree was extracted by Paterson, and Clark was charged on it on 17th July. On 29th July Clark presented a petition of appeal to the House of Lords against the interlocutors of the Lord Ordinary and the Second Division, and obtained an order for service, which was served upon Paterson for himself, and for behoof of Mrs Monteith, on 1st August 1884. Cases were

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ordered by the House of Lords to be lodged in February 1885.

On 15th October 1884 Mrs Monteith and Paterson, as agent disburser, presented a petition to the Second Division for execution pending appeal, setting forth that in consequence of the petition of appeal, and the order of the House of Lords to lodge cases, Paterson could not proceed with his diligence without an order from the Court. On this petition the Court allowed execution to proceed to the effect of enabling Paterson to recover payment as agent disburser of the expenses, he and Mrs Monteith always finding caution before extract to repeat the expenses in the event of the decision on the merits being reversed. In accordance with this order Mrs Monteith and Paterson procured a bond of caution, which was lodged with the Clerk.

On 24th November Paterson wrote to Clark saying (in reference to some previous correspondence) that that was the third time that he had sent for payment of his expenses, and that unless he had payment by three o'clock of that day he would be forced to place the extract decree in the hands of a messenger, with instructions to proceed.

On 26th November a messenger-at-arms, instructed by Paterson, proceeded to Clark's dwelling-house and poinded certain of his household effects, and a warrant of sale of these was obtained by Paterson from the Sheriff on 1st December. No charge had been given to Clark upon the extract-decree granting execution pending appeal, but the extract thereof was placed in the hands of the messenger before he proceeded to execute the poinding.

Clark then lodged the present note of suspension and interdict against Mrs Monteith and Paterson to interdict the sale of the poinded effects. He averred that the respondents not having given a charge upon the extract decree granting warrant for interim execution, the poinding was therefore wrongful, illegal, and malicious. He offered consignation of the expenses in the first decree.

The complainer pleaded—“(1) The grounds and warrants of the only charge given by the respondents being under appeal to the House of Lords, the said charge was, until said appeal is disposed of, without valid warrant and of no legal effect. (2) The poinding complained of not having been preceded by any charge which warranted it, the complainer is entitled to suspension and interdict.

The Lord Ordinary on the Bills on 3rd December appointed answers to be lodged, and on consignation granted interim interdict; on 16th December passed the note and continued the interim interdict; and on 27th February 1885 the Lord Ordinary (Lord M'Laren) repelled the reasons of suspension and interdict, and found the charge and procedure orderly proceeded.

“ Opinion.—By a decree of the Court of Session dated 3rd July 1884 the complainer was ordered to pay the amount of a certain account of expenses to Mr William Paterson, the agent-disburser. The respondents obtained an extract of this decree for the purposes of execution, and on 17th July gave the complainer the usual charge to pay the debt within fifteen days. A petition of appeal was thereafter presented to the House of Lords, praying for a reversal of the judgment of the Court of Session in the case in which the decree for payment of expenses was pronounced. An order of service having been obtained, the appeal was served on the respondents on 1st August, being, as I understand, the last day of the inducice of the charge.

On 15th October the respondents moved in the usual manner for execution pending appeal. On 29th October an order for interim execution pending appeal was made by the Second Division of the Court conditionally on the respondents finding security to repay the amount of the expenses found due by the decree of 3rd July, in the event of the interlocutor appealed from being reversed. Security was found to the satisfaction of the Clerk of Court, and the necessary bond was executed by the cautioner, and is now in the keeping of the Accountant of Court. These preliminaries being accomplished the respondents proceeded to execute their decree. A messenger instructed by them poinded certain household effects of the complainer, his authority being (1) the expired charge to obey the decree of 3rd July, and (2) the warrant for interim execution pending appeal.

I should have thought that the complainer had by these proceedings received all the ceremonial attentions from his creditor which the most exacting of debtors could desire. But it appears that the complainer conceives himself to be entitled to a second charge upon the original decree for expenses, and, although able, he is unwilling to pay until summoned in proper form. I have not been able to find any good reason why the complainer should be indulged with a second charge. The view of the complainer, if I rightly understand it, is that the appeal followed by service put an end to the charge. I think that the order of the House of Lords only suspended the effect of the charge. When the House of Lords affirms a decree of the Court of Session without variation execution always proceeds upon the original decree, because its effect is only suspended during the prosecution of the appeal, and I cannot understand how the appeal should have a suspensive effect upon the decree, and a rescissory effect upon the proceedings consequent on the decree. The Legislature has empowered the Court of Session to authorise execution pending appeal, and I think this is another proof that the effect of the decree is only suspended. Now, when an order for interim execution is granted the meaning of that order must be that the creditor is to be allowed to proceed as if the appeal were withdrawn or dismissed. In either case the creditor is remitted to his legal remedies exactly as if no appeal had been brought—that is to say, he is entitled to take up the proceedings at the point where they were interrupted, and to go on until he recovers payment. A second charge would, if my opinion is well founded, be a wholly superfluous proceeding, and a proceeding which the debtor would not be entitled to require as a solemnity antecedent to the fulfilment of his obligation to pay. If in this case there had been any sharp practice—any abuse of the forms of legal diligence—it would be competent to the Court in the exercise of its preventive jurisdiction to suspend the execution of its own decree, in order that the complainer should have an opportunity of avoiding the poinding by payment. But I am satisfied that in this case the complainer

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had ample notice, and that no injustice has been done. In the note of suspension the complainer does not offer payment, but asks for an unconditional interdict against carrying the poinding into execution. I think that the respondents were within their rights in putting the poinding in force, and that the complainer is not entitled to the interdict which he desires.”

The complainer reclaimed, and argued—The service on the respondent before the expiry of the days of charge of the order for service of the House of Lords had the effect of arresting further diligence in the extract decree for expenses of the Second Division. To enable the diligence to be proceeded with, the respondent should have given the complainer a second charge on the extract decree pronounced in the petition for interim execution, for otherwise he could not be judicially certiorated that caution had been found— Russel v. Scott, M. 8123; Shand's Pract. 50 Geo. III., c. 112, Sched. D; Beveridge's Forms of Process, p. 365; Mackay's Pract. ii. 479,1 and 2 Vict. c. 114. He denied that he ever knew that caution had been duly found.

The respondents replied—The extract decree in the petition for interim execution contained no warrant to charge. Besides, the warrant to charge in the decree for expenses was not evacuated, but only sisted in its operation by the order of the House of Lords. A charge once given on an operative decree could be got rid of only, namely, by final decree in a process of suspension— Lynch v. Buchanan, July 19, 1857, 13 D. 1402; E. P. and D. Ry. Co. v. Rowan, July 13, 1852, 14 D. 1001; Dick, M. 15, 158. The respondents had taken the only course open to them to enforce their decree for interim execution, and there was no inequity in the proceedings, of which the complainer had ample notice.

At advising—