Scottish Court of Session Decisions

By the first Sheriffs' Small Debt Act (6 Geo. IV., c. 24), it was provided (§ 2) that “a copy of the petition or complaint, with the citation annexed, shall be served upon the defender; and also a copy of the account, document of debt, &c., shall be delivered at the same time with the copy of the petition to the defender, &c.; and the officer summoning shall in all cases return an execution of citation signed by him, or shall appear and give evidence on oath of his having duly cited the defender.” In the form of execution given in the schedule appended to the Act, there is no statement of a copy of the voucher or account being delivered along with the complaint to the defender.

In July, 1827, the defender, Barbour, presented a complaint under the above statute to the Sheriff of Dumfries-shire, against the pursuer, M'Vitie, and another party, as owing to Barbour the sum of £7, 10s., “conform to their promissory-note, dated 31st August, 1826, produced herewith.” The officer of Court (Milligan) returned an execution of citation in the usual manner; the execution setting forth that the service was made “by personally apprehending and delivering to each of the said William Scott and William M'Vitie a full copy of the before complaint and warrant, with a short copy of citation thereto subjoined.” Upon 26th July decree was pronounced, finding the defenders liable in the sum sued for; whereupon a charge of horning having been given, M'Vitie was incarcerated. He was, after a short imprisonment, liberated, on executing a disposition omnium bonorum in favour of Barbour, for behoof of his creditors.

In November, 1835, M'Vitie raised action against Barbour to have the decree of 26th July, 1827, reduced for the following reasons, inter alia. (3.) That the claim upon which it proceeded neither distinctly nor articulately described the debt sued for; (4.) That “the debt, decree, and execution are disconform to the warrants on which the same are alleged to have proceeded, and are not subscribed and authenticated;” and that the execution does not bear that a copy of the document of debt founded on was served upon the pursuer; (5.) That “the execution of citation of the claim is illegal, in so far as it bears that M'Vitie was served personally with a copy of the complaint, whereas in point of fact he was not, of the date thereof, in this country, but in Newcastle in England.”

In defence it was pleaded by Barbour, that the claim, execution and decree in question, were in all respects formal and competent, and were not reducible on the grounds libelled.

The Lord Ordinary pronounced the following interlocutor, with the subjoined note ^*:—“In reference to the pleas to which the pursuer has

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^* “The present case differs essentially from those which have lately occurred on the Small Debt Act, and have been the subject of much consideration in both Divisions of the Court. The present action, though not raised till 1835, relates to a Small Debt decreen of 1827. Consequently it occurred under the first statute giving the Sheriff Small Debt jurisdiction. The other recent cases all arose under the second Small Debt Act, 10 Geo. IV., cap. 55.

1. The first plea is founded on section 2 of the statute, which provides that the pursuer shall give in to the Sheriff a petition or complaint, ‘stating shortly the origin of debt or ground of action.’ Now, here it is said the complaint set forth the sum of £7, 10s. as due, ‘conform to their promissory-note dated 31st August, 1836, produced herewith.’ This appears a most faithful fulfilment of the statute. The pursuer says, however, that the bill truly was not for £7, 10s., but for £15, and that it was only an instalment thereof that was due at the date of the complaint. Still, as the amount of the instalment due was just £7, 10s., and as reference was made to the bill itself as produced’ the Lord Ordinary is clear that there was no essential violation of the statute on this point.

“2. The pursuer argued that the execution was null here, as it did not bear that a copy of the bill had been delivered to M'Vitie. The first Small Debt statute, however, was differently framed from the second, and did not require either the execution or citation to bear that a copy of the voucher had been delivered. No doubt it expressly provided that a copy of the voucher should be delivered; but it did not enact that such delivery should be set forth in the execution. On the contrary, the schedule of execution annexed to the Act ( vide schedule A) was very different from that attached to the subsequent Act of 10 Geo. IV., as it was altogether silent as to the copy-voucher.

Had the pursuer averred here that no copy of the bill was actually delivered, he might possibly have had a relevant case. But he makes no such averment; and when it is found that the execution under reduction corresponds verbatim with the statutory formula, it seems impossible to reduce this citation, at least as objectionable in form.

3. The only other plea is that founded on the alleged falsehood of the execution. This bears that the summons was served personally on the pursuer, when he says that he was then in England; and the question comes to be whether such a challenge can be maintained in a simple reduction, such as the present, to which the officer is no party, or if it requires an action of reduction-improbation against both party and officer? The Lord Ordinary is of opinion that the latter is the proper course.

No doubt in a great many cases the same pleas may be tried in a simple reduction which may be and are discussed in a reduction-improbation; but all our authorities state generally that the proper form of setting aside so important an instrument as the execution of a summons, when challenged on the ground of falsehood, is to improve it; and if any distinction of action is to be maintained, or if any adherence to old forms is to be enforced, there seem to be strong reasons, founded on the principles of our law, for preserving the rule that a messenger's execution shall be only challengeable as false in the old and recognised form of reduction-improbation. For the challenge is founded on a charge of a grossly criminal nature, and therefore, if a civil court takes cognizance of such a case, it should only be according to the rules of our criminal procedure. But no reduction-improbation can be pursued, without the concurrence of the Lord Advocate, and without observing other forms in the process, unnecessary to be here specified. Lord Stair observes (B. IV., t. 20, s. 22), that ‘the reason of the Lord Advocate's concurrence is because the improbation is criminal.’ Accordingly, if a judgment is pronounced against the defender, the proceedings may afterwards be competently founded on in a proper criminal prosecution against the wrong-doer. While all this is clear and settled in cases of improbation, the Lord Ordinary is not prepared to say that the same consequences would follow, if such a challenge were allowed to go on in an action of simple reduction. Besides, it would seem extremely anomalous and vexatious, to permit a challenge of an officer's execution as false, to go on in a process to which the officer himself has not been called, as he, it must be presumed, would be liable in relief to the party if the execution really be false. Nothing to exempt the officer from such relief is averred on this record.

“Finally, it does not appear to the Lord Ordinary, that the pleas of the pursuer in the present case come before the Court under circumstances which entitle him to any relaxation of the strict forms of law. The decision under reduction was pronounced on 26th July, 1827. On the 31st of July of the same year, he received a charge thereon, by a copy delivered to his wife. He does not now aver, that that charge is false. But by the sixth section of the Small Debt Act, he might have applied for a rehearing within six days after the charge, when all the facts could have been investigated in a few minutes by the Sheriff in the following month, at the expense of a shilling or two. Instead of taking that course, however, he brings an action in this Court at the distance of eight years. It would obviously require the very clearest grounds in law or in form, to support an action raised under such circumstances; but on the grounds now explained, the pleas of the pursuer, as now urged, appear to be ill-founded.”

at present confined his argument, finds, 1 mo, That the ground of debt libelled on by the defender was sufficiently described in the claim on which the decree proceeded, in terms of section 2 of the first Small Debt Act, 6 Geo. IV., cap. 24, under which the proceedings under review took place. 2do, That the plea raised on the fourth reason of reduction, and more fully explained in article 2d of the Condescendence, is not well-founded, in respect that the execution of the Small Debt summons libelled on is verbatim conformable to the schedule annexed to the said statute then in force. 3tio, That the fifth reason of reduction, founded on a gross and criminal falsehood in the execution of the summons returned by John Milligan, cannot be tried in this process, in respect that it is not an action of reduction-improbation brought with concourse of the Lord Advocate; and further, and more especially, that the said John Milligan is not a party in this process; therefore repels the reasons of reduction as now insisted in by the pursuer, assoilzies the defender, and decerns; finds him entitled to expenses.”

M'Vitie reclaimed.