Scottish Court of Session Decisions

This was a note of suspension at the instance of M'Farlane & Company, produce importers and commission agents, Glasgow, and Thomas Bryce M'Lintock, sole partner of said company, as such partner and as an individual, complainers, against Prinzen & Van Glabbeek, margarine manufacturers, Helmond, Holland, and John Willocks, Glasgow, their mandatory, respondents.

On 5th June 1901 the respondents brought an action in the Sheriff Court at Glasgow against the complainers, in which they, inter alia, craved the Court to ordain the complainers, jointly and severally, to produce a full account of their intromissions as agents for the respondents, and to pay to them the sum of £1000, or such other sum as might appear to be the true balance due to them.

After sundry procedure the Sheriff-Substitute on 6th November 1901, on the motion of the respondents, pronounced the following interlocutor:—“ Glasgow, 6 th November 1901.—Having heard parties' procurators on the pursuers' motion, unopposed, ordains the defenders to consign with the Clerk of Court the sum of £600 sterling, and decerns.”

In part implement of the Sheriff-Substitute's order the sum of £200 was consigned with the Clerk of Court.

On 26th November 1901 the respondents extracted the interlocutor of 6th November.

The extract-decree contained a warrant to charge in the following terms:—“And the Sheriff grants warrant for all lawful execution hereon by instant arrestment, if the same be competent, and also by poinding, if the same be competent, after a charge of seven free days, or by imprisonment, if the same be competent, after a charge of seven free days.”

On 15th February 1902 the respondents, by virtue of the Sheriff-Substitute's interlocutor of 6th November 1901, and the extract-decree proceeding thereon, caused the complainers, M'Farlane & Company, as a company, and the complainer Thomas Bryce M'Lintock, as an individual, to be charged “to consign with the Clerk of the Sheriff Court of Lanarkshire at Glasgow the sum of £600 sterling, but always under deduction of the sum of £200 sterling already consigned with the said Sheriff-Clerk in part implement of said decree, and that within seven days next after the date of the charge, under the pain of imprisonment.”

In these circumstances the complainers brought the present note craving suspension of these charges.

They averred that the charges were illegal in respect, inter alia, that there was no warrant in the interlocutor of 6th November 1901 for charging the complainers to consign within seven days.

They pleaded, inter alia—2 (1) That the note should be passed and suspension granted in respect that the interlocutor of 6th November 1901 contained no warrant for charging the complainers to consign within seven days.

The respondents denied the complainers averments, and stated that the said charges were in regular and competent form, and were in all respects orderly proceeded—seven days being the requisite inducice on a Sheriff Court decree.

They pleaded, inter alia—(1) That the averments of the complainers were irrelevant, and (2) that the charges complained of, and whole grounds and warrants thereof, being orderly proceeded, suspension ought to be refused.

The Sheriff Courts (Scotland) Extracts Act 1892 (55 and 56 Vict. c. 17) enacts as follows:—Section 4—“Extracts of decrees in the Sheriff Courts of Scotland in civil actions or proceedings may be in the abbreviated forms in the schedule hereto annexed, or as near thereto as the circumstances permit, and the said schedule with the directions therein contained shall be held to form part of this Act; and extracts in such abbreviated forms shall be as valid and sufficient as if in the forms now in use.” …

Section 7 (2)—“If the decree extracted is for the performance of an act or implement of an obligation other than the payment of money, it shall be lawful in virtue of said warrant to charge the person against whom the decree is granted to perform the act or implement the obligation within the appropriate days of charge, under the pain of imprisonment.”

Schedule 12—“Extract Decree for Performance. ( Preamble as in No. 1). Decerned the defender ( here set forth shortly the particular act which the defender is to perform), and to pay to the pursuer of expenses. And the sheriff grants warrant for all lawful execution hereon by instant arrestment, and also by poinding and imprisonment so far as competent after a charge of seven free days. Extracted,” &c.

On 15th March 1902 the Lord Ordinary in the Bill Chamber ( Lord Peakson) pronounced this interlocutor—“Passes the Note so far as directed against the charge on the complainers M'Farlane & Company, and refuses the same so far as directed against the charge on the complainer M'Lintock, and decerns: Finds the complainer M'Lintock liable to the respondents in expenses,” &c.

Opinion.—“This is a suspension of a charge upon an extract Sheriff-Court decree, ordaining the complainers to consign a sum of £400. The charge is to consign that sum in the hands of the Clerk of Court within seven days after the date of charge, under pain of imprisonment.…

The next objection is that the charge bears to be upon an inducice of seven days; and it is said, first, that there was no warrant in the Sheriff's interlocutor for any

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charge, and in particular for a seven days' charge. If the diligence is otherwise maintainable, I see no objection to the length of the inducice, which is in accordance with practice and is warranted by the statutes. The objection really is, that there is no warrant in the Sheriff's decree for any charge. The warrant for the charge, however, is to be sought for not in the decree but in the extract; and that is in order. If the complainers go behind the extract they must challenge the decree itself, and for that purpose it is not sufficient to bring a mere suspension of the charge and its grounds and warrants.

Then the complainers say that the charge is given under pain of imprisonment, and that imprisonment is not competent, this not being a decree ad factum prcestandum. I think it is clearly ad factum prcestandum; and this being so, the complainers' objection, as stated, is rather this, that the Sheriff was not in the circumstances warranted in pronouncing such a decree, seeing that the complainers, who were defenders in the action, made no admission that any such sum was in their hands, and were not in fact able to pay it. These matters seem to me altogether outside the scope of this suspehsion.

On the arguments addressed to me I should therefore be prepared to refuse the note. But it appears that while the prayer of the note mentions a single charge, two charges were in fact given, one against the firm of M'Farlane & Company, and the other against Thomas M'Lintock, sole partner of the company, as such partner and as an individual. The first-mentioned charge is clearly bad. The case was, however, fully argued by the complainers without this point being taken; and I think the proper course is to refuse the note as regards the personal charge, and to pass it so far as regards the charge against the firm.”

The complainer Thomas Bryce M'Lintock reclaimed, and argued—The charge against him was bad in respect, inter alia, that it was not conform to the interlocutor. It limited the time within which consignation was to be made to seven days. The question depended on the Sheriff Courts (Scotland) Extracts Act 1892 (55 and 56 Vict. c. 17), section 7, subsection 2, which authorises the Sheriff Clerk, if the decree is one for performance, to insert in the extract a warrant to charge with the “appropriate days of charge.” That meant the days mentioned in the interlocutor. He cited the following cases:— Hendry v. Marshall, February 27, 1878, 5 R. 687, 15 S.L.R. 391; Middleton v. Leslie, May 19, 1892, 19 R. 801, 29 S.L.R. 657.

Counsel for the respondent referred to the 12th schedule of the Act cited by the complainers and also to section 4 of the Act.