Scottish Court of Session Decisions

Lord Justice-Clerk—This action was raised by the heritable creditors in a bond over certain property in Glasgow against the proprietor, the conclusion being for declarator that the pursuers have right to the rents, maills, and duties of the property under the bond. The Sheriff-Substitute granted decree in terms of the prayer, and added to his interlocutor an order in the following terms—“Meanwhile assigns as a diet for hearing parties upon the question whether the pursuers are precluded from enforcing the decree now granted by the Courts (Emergency Powers) Act 1914, Tuesday, 9th November next, at 2 p.m.”

Two points were argued before us. The first was whether there had been a sufficient demand for payment to justify the pursuer in raising an action at all. [ His Lordship gave his reasons for holding that sufficient notice had been given.]

The other question turns upon the interpretation of the Courts (Emergency Powers) Act 1914 and the relative Act of Sederunt. It was argued that before this action of maills and duties was raised at all there should have been an application to the Court, on the ground that this was really a step in the process of entering into possession, or of enforcing payment or recovering money in terms of section 1 (1) ( b) of the statute. In my opinion that argument is not well founded. I think an action of maills and duties is not a step in process in any proper sense of the word, but the decree in such an action is really, as Lord President Inglis described it in the case of Robertson's Trustees v. Gardner, 16 R. 705, 26 S.L.R. 547, only available as giving the heritable creditors a title to enter into possession of the estate.

It is a mere declarator of right which enables the holder of the decree to take further steps to get himself put into possession, but it in no sense enters the holder of it into possession. Further proceedings require to be taken before that result is brought about. I think the view upon which the Sheriff-Substitute proceeded is correct, namely, that a creditor having obtained a decree of maills and duties must then, under the powers given to the Court to stay execution, make an application to have it considered and determined by the proper Court whether such a decree should be put into operation. As Lord Guthrie pointed out in the course of the discussion, if it were necessary that before an action of maills and duties was brought an application under the statute for leave to bring it had to be made and disposed of, the result might be that the circumstances might be entirely changed between the date of the disposal of the application and the date of the final decree. The findings of the Sheriff-Substitute seem to me sufficient for the disposal of the whole case, and I think we should find in terms of his interlocutor and dismiss the appeal.

Lord Dundas—[ After dealing with the question as to the sufficiency of the notice]—As regards the other point of the argument, that it was necessary that the pursuers should, before they raised this action of maills and duties, make application for leave to do so, I agree with what your Lordship has said. I cannot find anything in the Courts (Emergency Powers) Act 1914 or in the Act of Sederunt to give countenance to the view put forward by the appellant's counsel. I think therefore that we should affirm the interlocutor and send the case back to the Sheriff-Substitute in order that he may proceed to hear parties as he proposed to do upon the question whether the pursuers are precluded by the Act of 1914 from enforcing the decree. The Court is entitled to assume that the learned Sheriff-Substitute will deal justly and properly with that application when it comes before him.

Lord Salvesen—… As to the more important question concerning the question under the Courts (Emergency Powers) Act 1914 whether an action of maills and duties can be raised without a previous application under the Act, I have come in the end to have no doubt that such procedure is unnecessary. There may be a good defence upon the merits and no decree may pass. It is time enough therefore to consider whether the decree is to be put into force after it has been obtained. Accordingly I think the action must be allowed to take its course, and if it results in a decree, then the pursuer who wishes to put his decree into force must present an application to the Sheriff-Substitute for leave to do so. At the hearing of that application I have no doubt the Sheriff will take into account all the circumstances that were urged before us as indicating that this was a hard case. It is certainly not a unique case, because at the present time there must be many property owners in the city of Glasgow who are in exactly the same position as the defender, unable owing to the state of the money market to replace existing bonds when they are called up. Accordingly what the Sheriff may do upon this application may be a guide in future cases, but we are not to assume at this stage that the Sheriff will not have due regard to what he is directed by the Act to consider, and will not entertain and deal with any conditions which it may be equitable to impose upon the creditors if they are to have the benefit of the decree which is now being granted to them.

Lord Guthrie—I agree.… With regard to the second question, I think that in view of the admission that section 1 ( a) of the Courts (Emergency Powers) Act 1914

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