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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Smith v. Kirkwood and Another [1897] ScotLR 34_652 (28 May 1897) URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0652.html Cite as: [1897] SLR 34_652, [1897] ScotLR 34_652 |
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Page: 652↓
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Where a party, charged upon a decree in the Sheriff Court, presented a note of suspension of the charge and its warrant, on the plea that the decree had been fraudulently obtained, held that he was not entitled to have the decree suspended in respect that the grounds of suspension being extrinsic to the Sheriff Court process, the note of suspension did not truly bring the Sheriff's judgment under review upon its merits.
Opinion reserved whether in view of the changes introduced by the Court of Session Act 1868 in dealing with the judgments of inferior courts, suspension is still a competent mode of bringing these under review.
In 1894 decree was pronounced of consent against the defender in an action of affiliation and aliment raised in the Sheriff Court of the Lothians and Peebles by Grace Stirling Kirkwood against Andrew Smith. The sum decerned for was £2, 2s. of inlying expenses and £7 per annum of aliment.
On 26th July 1894 Kirkwood charged Smith to make payment of a sum of money in terms of said decree, and after a petition for warrant to imprison had been presented against him, Smith was on 18th September 1894 ordained, on pain of imprisonment, to pay a sum down, and to make certain payments weekly thereafter, which payments he duly satisfied as they became due.
On 21st October 1896 Smith presented a note of suspension in the Bill Chamber craving the Court to suspend the above-mentioned charge and warrant to imprison, with the whole grounds and warrants thereof.
The complainer recited the proceedings against him in the Sheriff Court, and made certain averments on which he founded the following plea-in-law:—“(1) The decree in said affiliation action having been obtained by means of the fraudulent representations and actings of the respondents, the charge and warrant to imprison following thereon are inept and ought to be suspended.”
The respondents, Kirkwood and her father, as her curator-at-law, denied the averments of fraud and pleaded, inter alia—“(1) The complainer's statements are not relevant or sufficient to support the prayer of the note, and it ought to be dismissed.”
The charge and petition for warrant to imprison following thereon duly proceeded upon the Debtors (Scotland) Act 1880 (43 and 44 Vict. cap. 34), sec. 4, and the Civil Imprisonment (Scotland) Act 1882 (45 and 46 Vict. cap. 42), sec. 4.
The sections of the Court of Session Act 1868 (31 and 32 Vict. cap. 100) regulating the review of decisions of inferior courts are secs. 64 to 78.
On 29th January 1897 the Lord Ordinary (
Kincairney ) pronounced the following interlocutor—“Finds that the first plea-in-law for the complainer cannot be entertained in the action: Therefore repels said plea: Finds that it appears from the statement of parties that the sum charged for has been paid: Therefore suspends said charge and warrant for imprisonment: Finds the respondents entitled to expenses.”The complainer reclaimed, and argued—The note of suspension was directed not against the charge but against the decree upon which the charge was given. The time for appealing the Sheriff's judgment had long since elapsed, but suspension was a competent mode of bringing the Sheriff's judgment under review in such circumstances—Mackay's Practice, ii. 474; Ersk. iv. 3, 8; and the Court of Session Act 1868, while abolishing advocation, had not touched suspension.
The respondents' argument may be gathered from the opinions of the Judges.
Now, that is not the warrant the suspender complains of.
As I understand, the complainer does not so much object to the Lord Ordinary's interlocutor suspending that warrant, but what he says goes further, and is—I want also in this suspension the original decree against me in the Sheriff Court set aside. That is the only plea which he puts forward.
That means that the original decree is to be set aside on the ground of fraud. I have always understood that to upset a decree on the ground of fraud is to introduce extrinsic matter, and is only obtained by way of reduction. Accordingly, the Lord Ordinary seems to me to be quite
Page: 653↓
The first proposition maintained by Mr Anderson is that suspension of a charge with its warrant is a legal and competent mode of obtaining review of a decree upon its merits.
There was, no doubt, a period in the history of our process law when that proposition might have been affirmed. I think it is laid down in the institutional writers that decrees both of inferior courts and of the Lords Ordinary might be reviewed by way of suspension.
I should desire to reserve my opinion upon the question how far such procedure would be still competent in view of the radical changes introduced by the Court of Session Act 1868, in the mode of dealing with judgments of inferior courts. But supposing the proposition to be well founded it does not appear to me that any proper application of the kind is before us. We are not asked to review a judgment finding the defender liable for aliment on his own admission (which was the only matter before the Sheriff), but we are asked to set aside the decree upon grounds which were not before the Sheriff, and I fail to see how an application of the kind can be regarded as a mode of reviewing the decision of the Sheriff.
While the Lord Ordinary was no doubt quite entitled to suspend, no one opposing, he was I think also right in rejecting the complainer's first plea-in-law and the argument founded upon it.
The Lord President concurred.
The Court adhered.
Counsel for the Complainer — A. M. Anderson. Agent— Mungo Headrick, Solicitor.
Counsel for the Respondents— J. C. Watt. Agent— George Jack, S.S.C.
