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Scottish Court of Session Decisions >>
Johnston v Kellow. [1803] Mor 7634 (19 January 1803)
URL: http://www.bailii.org/scot/cases/ScotCS/1803/Mor1807634-345.html Cite as:
[1803] Mor 7634
Unless the most apparent iniquity has been done in the execution of the small debt act, by the Justices appointed to carry it into execution, no appeal from their sentence ought to be received.
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Francis Johnston in Skypolton was brought before the Justices of Peace for the district of Old Deer in Aberdeenshire, at the instance of William Kellow in Slampton, for payment of L. 2:1:8, which sum he was ordained to pay, (7th October 1799).
Alleging that the sum, if due, was money owing not by himself, but by his father and mother, and that the conclusion against him was founded upon a supposition that he had intromitted with their effects, Johnston brought an action for reduction of this decree, as the rules of passive representation are of a positive and peculiar kind, and are not obvious to that feeling of equity an good conscience, which is sufficient to determine the obligations of personal contract; and though he did not dispute the competency of the Justices in point of jurisdiction, he endeavoured to question the validity of their decree.
On the other hand, it was contended, that the act 39th Geo. III. cap. 46. was intended to prevent tedious and expensive law-suits about small sums; that appeals to superior courts are for this purpose as much as possible discountenanced; and the only rational presumption, as to the conduct of men in this situation, is, that the Justices had sufficient grounds for the judgment they pronounced.
The Lord Ordinary (11th July 1801) repelled the reasons of reduction; to which judgment the Court adhered, (23d February 1802), by refusing a petition without answers; and again adhered, upon advising a reclaiming petition with answers.
The view which was taken by the Court was, That unless the most apparent iniquity has been done in the execution of the small debt act, by the Justices appointed to carry it into execution, no appeal from their sentence should be received; that the intention of the legislature was, that the questions of trifling pecuniary importance, to which it applies, should at once receive a final determination; and that, instead of checking useless and injurious litigation, if the Court admit appeals, by inquiring whether the Justices proceeded to judge of points of law, and whether they judged rightly or not on them, there would be no end to law-suits among the indigent, and the salutary influence of this beneficial act would be entirely destroyed.
Lord Ordinary, Methven.Act. Horner.Agent, J. Peat.Alt. Maconochie.Agent, J. Morison, W. S.Clerk, Home.
Fac. Col. No 75. p. 169.
