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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Broatch v. Pattison [1898] ScotLR 220_2 (16 December 1898) URL: http://www.bailii.org/scot/cases/ScotCS/1898/36SLR0220_2.html Cite as: [1898] ScotLR 220_2, [1898] SLR 220_2 |
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Page: 220↓
[Sheriff Court of Edinburgh.
Held that an appeal against an interlocutor of the Sheriff pronounced in a petition for cessio was competent, though the amount of the debt stated in the statutory notice was under £25.
An order of caption is an order of a court for the recovery of documents belonging to itself, and is not an interlocutor in a cause, and accordingly the refusal by a Sheriff-Substitute to grant caption held not to be subject to review by the Court of Session.
A petition was presented in the Sheriff Court of Edinburgh by Mr Robert Broatch, solicitor-at-law, Edinburgh, against Mr Peter Pattison, watchmaker, Edinburgh, craving the Court to order the defender to execute a disposition omnium bonorum for behoof of his creditors, and to appoint a trustee to manage his estate.
The pursuer averred that he was a creditor of the defender to the extent of £12, 9s. 2d., conform to a debts recovery decree and expenses of diligence thereon, and that the defender having been duly charged, the charge had expired without his making payment.
The defender lodged a caveat, and the Sheriff — Substitute ( Orphoot) on 22nd February 1898 refused the petition.
The pursuer appealed to the Sheriff ( Rutherfurd), who on 16th March pronounced an interlocutor whereby he adhered to the interlocutor of the Sheriff — Substitute, and found no expenses due to or by either party.
The defenders' agent having demanded caption for return of the proceedings in the cessio, the Sheriff-Substitute ( Dove Wilson) on 15th April pronounced an order whereby he “refuses the sheriff-clerk's application for caption.”
The defender appealed against the interlocutor of 16th March and the order of 15th April.
Page: 221↓
Argued for respondent—The appeal was incompetent in both branches. 1. The true test of the value of the cause was to be found in the initial writ setting forth the amount of the creditor's debt. In the present case that writ was the notice given to the debtor under the A. of S. 22nd December 18S2, sec.1, and the sum set forth was only £12, 9s. 2d— Henderson v. Grant, March 17, 1896, 23 R. 659; Dickson v. Bryan, May 14, 1889, 16 R. 673. Moreover, this petition had not really been disposed of on its merits, for having been refused on a caveat there never had been a process, so there could be no appeal as to the merits — Adam & Sons v. Kinnes, February 27, 1883, 10 R. 670. The sole point raised was the question of expenses before the Sheriff, and that formed the true value of the cause as appealed. 2. It was not competent to appeal against an order dealing with caption, which was pronounced after the date of the appealable interlocutor. It was part of the Sheriff Court procedure, with which the Court of Session had no concern, and was not an interlocutor in the cause.
Argued for appellant—1. It was competent to appeal against a sheriff's interlocutor, even though the only point in the appeal was a question of expenses — Fleming v. North of Scotland Banking Company, October 20, 1881, 9 R. 11. The true criterion of the value of the cause was not, as the respondent maintained, the amount stated in the statutory notice, for the petition for cessio might involve property of far greater value than £25. 2. Owing to the fact that part of the process was in the pursuer's ands, the defenders were unable to get extract of the interlocutor. Accordingly, the order refusing caption was subject to appeal, even though it was pronounced subsequent to the Sheriff's interlocutor disposing of the merits. It was a judicial step in the process which might be competently reviewed— Watt v. Thomson, July 18, 1868, 6 Macph. 1112, at p. 1123. Alternatively if it constituted a separate process in itself, it was equally competent to appeal.
On the merits I am not aware that the Court is inclined to encourage appeals upon questions of expenses, and in this case I see no reason for interfering with the manner in which the Sheriff has exercised his discretion.
As regards the process caption, it is an order by the Court for recovery of documents belonging to itself, and is not one with which we have anything to do by way of appeal.
I am for refusing the appeal.
As regards caption, I do not think the Sheriff's order is an interlocutor in the cause. It is applied for by an agent who wishes part of the process which has been borrowed to be returned, and is obtained at the instance of the Sheriff-Clerk. He goes to the Sheriff and gets a warrant to apprehend in respect of the failure to implement the order. That is not an interlocutor, and accordingly we cannot interfere with the procedure of the Sheriff in his own Court.
On the matter of caption, that is an order of the Sheriff-Substitute, and is not an interlocutor in the lis between the parties. Caption is a disciplinary process in the exercise of the authority which every court has over the agents who practise before it to enable the clerk of court to account for the documents entrusted to his charge. It is directed, not against the party but the agent, and therefore I agree with your Lordship that we have nothing whatever to do with it in this case. The parties know very well if it is used in error that there are other remedies open to them than appeal.
The Court dismissed the appeal.
Counsel for the Appellant— A. S. D. Thomson — Hunter. Agent — J. B. Lee, S.S.C.
Counsel for the Respondent— M'Lennan. Agent— Robert Broatch, Law-Agent.
