Scottish Court of Session Decisions

The Act 33 and 34 Vict. c. 86, provides by section 12 that every union of counties into one sheriffdom “shall be deemed to be a complete union to all intents and purposes, in so far as regards the jurisdiction, powers, and duties of the sheriff and his substitutes, and in so far as regards the powers, duties, rights, and privileges of procurators before the courts of the sheriff. And the several counties of any such united sheriffdom shall not be thereafter regarded as separate sheriffdoms or jurisdictions in so far as regards the powers, duties, rights, and privileges of the sheriffs and his substitutes and the procurators of the Sheriff Court.”

Upon 7th August 1890 John Johnston, joiner, Innerleithen, raised an action in the Sheriff Court of the sheriffdom of the Lothians and Peebles at Edinburgh, against George Tait, Woodside Cottage, Innerleithen, concluding for payment of £50, 17s. 3d., being the balance of the contract price of a dwelling-house erected by him for the pursuer. Warrant was granted in ordinary form to cite the defender, who was ordained, if he intended to defend the action, to lodge a notice of appearance in the hands of the Clerk of Court at Edinburgh within the period of induciæ. A copy of the petition, with warrant annexed, was duly served upon the defender by registered letter, in terms of the Act 45 and 46 Vict. c. 77. The said Act prescribes no statutory form of citation. Here the citation bore in gremio to be executed by Marcus John Brown, S.S.C. and law-agent, but was subscribed “For Marcus J. Brown, S.S.C., T. H. Lang Guthrie, Solicitor, 2 George Street.” The execution of citation was returned by the said Marcus John Brown in the form given in the schedule annexed to said Act. The defender having paid no attention to the citation afterwards tendered the whole sum sued for, but refused to pay any of the expenses of the action. This offer the pursuer refused, and upon 12th September 1890 obtained a decree in absence before the Sheriff-Substitute at Edinburgh with expenses of process. Having extracted said decree, and obtained a warrant thereon, the pursuer on 6th October 1890 charged the defender to pay within six days the said sum of £50, 17s. 3d., with interest, £3, 9s. 2d. of expenses of process, and 3s. as the dues of extracting said decree.

The defender thereupon brought a note of suspension against the said John Johnston to have the decree, warrant thereon, and charge suspended, and the respondent interdicted from proceeding with any diligence, in which he pleaded, inter alia—

“(1) The complainer having no residence or place of business within the county of Mid-Lothian, is not subject to the jurisdiction of the Sheriff of the Lothians and Peebles or his Substitutes sitting at Edinburgh as Judges of the Sheriff Court of the county of MidLothian; and separatim, in the circumstances stated, a citation to the Sheriff Court at Edinburgh was not a citation which the complainer was bound to obey. (2) The proceedings complained of being incompetent and inept in respect of no jurisdiction over the complainer, suspension and interdict should be granted as craved, with expenses. (3) Separatim—The complainer never having been cited to the said Sheriff Court at Edinburgh, the decree pronounced against him is inept, and the same with all that has followed thereon should be suspended as craved.”

The respondent pleaded, inter alia—“(2) The decree and proceedings following thereon being regular and formal, are not liable to be set aside under suspension.”

The complainer thereafter consigned in the hands of the Clerk to the Bill Chamber all the moneys which he had been decerned to pay, less the interest.

Upon 7th February 1891 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Having considered the cause, with the amended plea for the complainer, Repels the first, second, and third pleas-in-law for the complainer: Repels the reasons of suspension, and decerns: Finds the respondent entitled to expenses, &c.

“ Opinion.—This is a note of suspension of a decree in absence pronounced in the Sheriff Court at Edinburgh against the complainer, who is admittedly resident and domiciled in the county of Peebles. I do not know whether the case is of much importance to the parties, but the pleas of the complainer raise questions of practice of importance and general application. Three grounds of suspension were stated, and the note was not supported in argument on any other ground. It was maintained that the decree should be suspended and the diligence thereon interdicted—(1) because the citation was defective in form; (2) because the Sheriff sitting in the Sheriff Court at Edinburgh had not jurisdiction over a defender resident and domiciled in the county of Peebles; and (3) because the complainer was not liable to be cited to the Sheriff Court at Edinburgh, and was not bound to obey the citation.

1. The objection to the citation was this—That while the schedule of citation left with the defender bears to be executed by Marcus John Brown, S.S.C., Edinburgh, law-agent, it is not signed by him, but bears to be signed for him by T. H. Lang Guthrie, solicitor. It was not denied that both of these gentlemen are enrolled law-agents, but it was maintained that the signature of Mr Brown was essential. That is the only defect in point of form averred.

Service of a summons by a law-agent is authorised by the recent Statute 45 and

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46 Vict. cap. 77. Section 3 of that Act provides, inter alia, that a summons may be executed by an enrolled law-agent by sending to the residence of the person on whom it is to be served, in a registered letter by post, ‘the copy of the summons or petition or other document required by law in the particular case to be served, with the proper citation or notice subjoined thereto, … and that such posting shall constitute a legal and valid citation,’ unless such person shall prove that the letter was not left or tendered at his residence.

The 4th section of the Act provides that ‘the execution returned by a law-agent shall for all purposes be equivalent to an execution by an officer of court,’ and that it may be in the form of a statutory schedule.

There is annexed to the petition in this case an execution signed by Mr Marcus J. Brown, which is in terms of the statutory schedule.

The statute does not expressly require that the law-agent who serves the summons shall sign the schedule of citation. But it was maintained that this is required by the Statute 1592, cap. 141, which requires that ‘all copies of summounds and letters quhilkes sall be delivered to ony party be subscrived by the officer executor thereof.”

It would appear that the documents to which this Act refers are the schedules of citation, and not the principal writs themselves— Izatt v. Robertson, January 25, 1840, 2 D. 476, and Bruce v. Hall there referred to. But I am under the apprehension that before 1882 (except in the cases to which the Act 34 and 35 Vict. cap. 42, applies) the formalities of citation on summonses in the Sheriff Court were not regulated by that Act, but by the Act 1 and 2 Vict. cap. 119, sec. 23, and the relative Act of Sederunt, 10th July 1839, sec. 13. There is no statutory form of a schedule of citation, and its signature by the officer is not required expressly by either of these enactments, although perhaps such a requirement may be implied in the section of the statute, while the presence of a witness at the execution and the signature of the officer on each page of the summons is expressly required by the Act of Sederunt.

That requirement is not repeated in the Citation Amendment (Scotland) Act 1882, and of course there is no room for a witness in the case of service by registered letter, and I am not at present prepared to hold that the signature of the law agent, who is said in the schedule to make the service, is a statutory requirement. If it be, I should think it a very loose and dangerous practice to send a schedule signed by one law agent for another, and should have great difficulty in holding that the schedule of citation in this case was signed by Mr Brown.

But I think it is not necessary to decide that point absolutely, because no objection has been taken to the agent's execution, which by the Citation Act is equivalent to an officer's execution, and it appears to be still in accordance with our practice to refuse to entertain an objection to the schedule of citation when the execution is in form and unreduced.— Calder v. Calder, December 20, 1825, 4 S. 331; Ramsay v. Pettigrew, December 13, 1828, 7 S. 193; Macqueen v. Clyne's Trustees, May 20, 1834, 12 S.D. 610. I think, therefore, that this ground of suspension cannot be sustained.

2. The complainer by his first plea, as originally drawn, and by his second plea objects to the jurisdiction of the Sheriff when sitting as Judge of the Sheriff Court of the county of Midlothian.

I am of opinion that the plea of no jurisdiction cannot be sustained. The question depends on the provisions of the statutes by which certain counties have been united into one sheriffdom. One or two of the counties in Scotland have been united as one sheriffdom for a long time back, but there have been only two statutes recently passed on the subject. The first is the Act 16 and 17 Vict. cap. 92, passed in 1853, by which the union of various counties is provided for when vacancies should occur, and section 4 provides that when a vacancy should occur in the sheriffdom of Peebles it should be united with the county of Midlothian into one sheriffdom. The later Act, which is the Act directly applicable, is 33 and 34 Vict. cap. 86, passed in 1870. By sections 4, 5, and 6, provision is made for the union of the counties of Midlothian, Linlithgow, Haddington, and Peebles into one sheriffdom, to be called the Sheriffdom of the Lothians and Peebles, and by section 12 it is enacted—[ section quoted above].

In the face of these absolute and comprehensive words it seems impossible to deny the jurisdiction of the Sheriff of the Lothians and Peebles in this case. Counsel for the complainer referred to section 6 of the Act 39 and 40 Vict. cap. 70 (1876), which provides that a person having a place of business in a county shall be subject to the jurisdiction of the Sheriff thereof, although domiciled in another county, if cited personally or at his dwelling-place, with power to the Sheriff to remit such action ‘to the court of the defender's domicile in another sheriffdom; and to section 12, which by its first sub-section provides for citation in such cases.

The argument, as I understand it, was that because the word county was used and not sheriffdom, it was to be inferred that but for the Act the Sheriff in one county forming part of a united sheriffdom would not have had jurisdiction over a defender who had a place of business in another county forming part of the same sheriffdom. But I think the inference inadmissible. The statute does not profess to do more than confer jurisdiction. It says nothing about the seat of the Court at which the jurisdiction is to be exercised. It confers jurisdiction in language which is not a whit more clear or absolute than that of section 12 of the Act of 1870. I do not think it applies to the jurisdiction of a Sheriff over the divisions of a united county at all. If it does, it adds nothing in language or in substance to his power, and I

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think that the use of the word ‘sheriffdom’ at the close of the section shows that there was no intention of drawing any distinction between a county and a sheriffdom.

Reference was made to Edwards v. The Inverness and Aberdeen Railway Company, April 24, 1862, 4 Irv. 185, where the sheriff, sitting in the Small-Debt Court at Banff, dismissed an action of damages against the Railway Company on the ground of no jurisdiction. The statutory domicile of the Railway Company was Inverness, but it had been cited at Keith in Banffshire. The pursuer appealed to the Circuit Court at Inverness, and seems to have argued that there was no jurisdiction, because Keith was a principal station. The appeal was dismissed. The grounds of judgment do not appear quite clearly. But it was pointed out that Lords Neaves and Ardmillan both indicated that there might have been a difference had the action been brought in the Sheriff Court at Elgin, in which county the injury happened, and it was argued that as Elgin and Banff were united counties it could, if the respondent's argument were sound, have made no difference as to the question of jurisdiction whether the action was brought at Banff or at Elgin. It does not appear, however, that the attention of the Judges was called to the point at all, and they do not purport to decide it, nor indeed allude to it.

3. The further question is this—Whether, admitting the jurisdiction of the Sheriff, it was competent to convene the defender to the Sheriff Court at Edinburgh, and entertain a cause against him in that Court; or whether the complainer is now entitled to say that he was only bound to attend the Court of the Sheriff at Peebles, the head burgh of the county in which he was resident.

This is not a question of jurisdiction exactly, but rather about the conditions of its exercise, and especially about the Court at which it can be competently exercised. It is not in this case complicated by any question as to the power of the Sheriff-Clerk to sign the warrant of citation, because the warrant is signed by the Sheriff-Substitute about whose power there is no question. The point appears a difficult one, and there is, so far as I have been able to discover, hardly any authority in our books on the subject. The only similar reported case, so far as I am aware, is Dowie v. Douglas, May 30, 1817, F.C., which it may be worth while merely to refer to, but as I do not see that it can be used as an authority either way it is not necessary to advert to it further. I may refer also to Ersk. i. 4, 5, where he treats of the exercise of a Sheriff's jurisdiction at the head burgh of a county, or of the division of a county, and he gives as an example and illustration ‘the shire of Clydesdale, which in his time had been separated into three divisions, but he does not affirm that it would be incompetent to exercise jurisdiction at the head burgh of one division over an inhabitant of another division.

Allusion may also be made to the Statutes 4 Geo. IV. c. 97, in 1823, which by section 6 provides that where two counties are under the jurisdiction of one Sheriff they shall constitute one commissariot; and to 1 and 2 Vict. cap. 26, which authorises the Sheriff of two counties to hold commissary courts in both counties if he shall think proper. The inference is legitimate that he could if he chose exercise his jurisdiction, at least as commissary, in one of the counties over persons resident in another, and that seems simply in consequence of two commissariots being united.

It is argued, on the one hand, that before the union of the counties it was the right of the defender to be convened at the Sheriff Court in his own county, and that there are no words in the statute to deprive him of that right; that the object of establishing resident Sheriff-Substitutes and local courts was just to make this right effectual; and that although there might be no great hardship in this case, still there was some hardship, and the hardship would be very great if in some of the northern counties it were held to be in the power of a pursuer to compel a defender to come from one county to another in the same sheriffdom.

On the other hand, it was maintained that seeing the complainer resided within the territory of the Sheriff, he was bound to obey his citation judicially given, and that there was neither principle nor authority for denying to the Sheriff the power to convene any person within his territory to any established seat of his court; that it was within the power of a Sheriff, by an order of court, to determine to what seat of court persons resident in the different districts of his sheriffdom should be convened; that this was a matter safely left to his discretion and not vested in any other authority, and that the power of the Sheriff had been exercised in various cases in which more than one seat of the court had been established in a county; that the intention of the statute was to abolish all distinctions between the different counties united into one sheriffdom so far as the administration of the law was concerned.

Having regard to the very comprehensive language of the statute uniting the counties, I am unable to sustain the complainer's contention, or to restrict the sheriff in the exercise of his jurisdiction, without some definite authority, statutory, judicial, or institutional. It is true that it would be highly inconvenient if a pursuer were allowed to call a defender to the court in a united sheriffdom most convenient to himself without regard to the residence of the defender, but it is not necessary to hold that a pursuer has that power. The matter is under the control of the Sheriff, who can regulate it by an order of court, and can, if he thinks fit, refuse to issue his warrant of citation against a defender more suitably amenable to another court, or can perhaps deal with any question of the kind by an award of expenses. If he have such power, the alleged inconvenience may prove more theoretical than actual. In this case the Sheriff-Substitute has himself granted warrant to cite the defender to lodge his defences with the Sheriff-Clerk at Edinburgh,

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and has decerned against him because he did not appear, and I have not been able to discover any reason which appears to me sufficient for denying his right to exercise his undoubted jurisdiction and power in that manner.”

The complainer reclaimed, and argued—(1) He did not challenge the jurisdiction of the Sheriff. That was not the question. What he maintained was that he was not bound to answer a citation except to the head burgh of his own county—Ersk. i. 4, 5. To hold otherwise might lead to great hardship, e.g., one Shetlander might cite another Shetlander to appear at Wick as being in the same sheriffdom. (2) The citation was bad, inasmuch as it was not signed by the agent who was said in the schedule to make the service. It was no better than an ordinary letter. When so plainly invalid it vitiated the service although the execution had not been reduced.

The respondent was not called upon.

At advising—