Scottish Court of Session Decisions

Margaret Mouat, of Bressay, Zetland, raised an action in the Sheriff Court at Lerwick, under the Debts Recovery (Scotland) Act 1867, against William Lee, fish curer, Baltasound, Unst, Zetland, residing at Fraserburgh, concluding for payment of £30.

The facts of the case are contained in the following minute of admissions for the parties—“(1) that the defender, who resides in Fraserburgh, holds a lease of the fishcuring station mentioned in the summons, for a term of five years from and after 1st June 1889, at the yearly rent of £30, payable at Martinmas, beginning the first payment at Martinmas 1889; (2) that the defender entered on the possession of the station as a fish-curer, and cured herrings thereon during the year 1889; (3) that the defender has not been removed from said station nor renounced his lease; (4) that the sum sued for is the rent due for the first year of the lease; (5) that since then the defender has not carried on active operations on the station, but has been in possession thereof, and has thereon fish-curing stock and plant; (6) that the summons was served by the pursuer's agent by registered letter.”

The defender pleaded—“(1) No jurisdiction in respect—1st, that the defender has no domicile in Zetland or place of business there; 2nd, that he has not carried on a trade or business within the said county since the month of August 1889; 3rd, that he has not been cited to appear in this action, either personally or at his place of business within said county; and 4th, citation by law-agent incompetent.”

On 4th February the Sheriff-Substitute ( Mackenzie) repelled the defender's 1st plea and fixed a diet of proof.

“ Note.—The preliminary pleas in this case are ‘no jurisdiction,’ a question which, according to the judgment in M'Leod v. Tancred, Arrol & Co., February 18, 1890, 27 S.L.R. 348, must be decided ante omnia; and ‘no valid citation.’ The jurisdiction which is claimed arises from the fact that although the defender resides in Fraserburgh he carries on business within this sheriffdom. From the statement of fact in the joint-minute, I think that there can be no doubt that although the defender's

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business may not be in active operation at this moment, he has a place of business, and has the materials of business here, and is tenant of the premises in dispute for the purposes of his trade. I think this is sufficient to confer jurisdiction. A doubt, however, occurs as to whether the section which gives jurisdiction in this way, viz., the 46th section of the Sheriff Courts Act of 1876, is applicable to the Debts Recovery Court. There is another Act, however, the Statute 48 Geo. III. c. 110, sec. 60, which confers a wide jurisdiction over those carrying on the business of herring fishing within the sheriffdom, or within ten miles of the coast, and the defender undoubtedly comes under its provisions. Again, the principle of the thing in dispute being within the sheriffdom might fairly be applied here. For these two last reasons I hold that there is jurisdiction. A further objection is made against the form of citation in this case, but I am of opinion that that cannot be heard according to the rule that a defender who appears is barred by that fact from objecting to a citation. It is perhaps doubtful, in the absence of express enactment, if this rule which is contained in section 12, sub-section (2), of the Sheriff Court Act 1876, applies to the Debts Recovery Court, but as it is so specially enacted both for the Ordinary Sheriff Court and in the Act of 1868 regulating procedure in the Court of Session I think it is a reasonable analogy to hold it as applying to this Court also.”

On 18th February 1891 the Sheriff-Substitute decerned for the sum sued for with £2, 6s. 4d. of expenses.

On 25th February 1891 the Sheriff ( Thoms) on appeal affirmed the interlocutor appealed against.

The defender appealed to the Court of Session, and argued—(1) The Sheriff had jurisdiction over the tenant of heritable property only when the tenant actually resided in the county or carried on business there. Here the defender lived at Fraserburgh, and for some time no active operations had been carried on at the station. The case was quite different from that of the tenant of a dwelling-house or farm who was more or less continuously on the spot. To give the Sheriff jurisdiction in the present case it was necessary that the defender should have been cited either personally or at his place of business. This was not a proceeding in the Sheriff's ordinary court, nor was it an “action” in the sense of section 46 of the Sheriff Court Act 1876, and the rules of citation there laid down were not applicable— M'Bey v. Knight, November 22, 1879, 7 R. 255; Ferguson v. Dyce, February 25, 1882, 11 R. 671.

Argued for respondent—The action was for the rent of a heritable subject situated in the sheriffdom, and the Sheriff in such a case had jurisdiction. The provisions of section 46 of the Act of 1876 were wide enough to include proceedings in the Debts Recovery Court, for they dealt with the service of “writs” generally, not merely with petitions. As the defender here had appeared, he was barred from taking any objection to the citation; besides, citation here was by registered letter in terms of the Citation Amendment of 1882.

At advising—