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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson v. Scott [1890] ScotLR 28_127 (21 November 1890) URL: http://www.bailii.org/scot/cases/ScotCS/1890/28SLR0127.html Cite as: [1890] ScotLR 28_127, [1890] SLR 28_127 |
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Page: 127↓
A person whose effects had been poinded under a small-debt decree for £12 of rent, applied to the Court to suspend the decree and interdict a certain sale of her effects, on the ground that the respondent had admitted, since he obtained the decree, that the £12 had been decerned for as “a half-year's” instead of a years' rent of premises let to her. Held that the suspension and interdict was incompetent under section 30 of the Small Debt Act.
On 4th June 1890 William Scott, commission agent, Lauder, brought a summons in the Small Debt Court at Greenlaw, Berwickshire, against Mrs Lilias Wilson for payment of £12, which was described in the note of claim annexed to the summons as the “half-year's rent due by the defender, payable in advance, for current half-year of house and small garden plot in Lauder belonging to the pursuer, and let under a verbal lease for one year from Whitsunday 1890.” … On 26th June the Sheriff granted decree for the sum sued for with expenses.
On 28th June Mrs Wilson's agents wrote
Page: 128↓
to Scott's agent pointing out that “£12 was the rent for the year and not the half-year, as set forth in the summons,” and in his reply Scott's agent admitted that to be the case. In subsequent letters Scott's agent denied that decree had been granted in error, and asserted that the sum decerned for was “justly due,” but admitted that by a “clerical error” the word “half-yearly” had been written in the note of claim instead of the word “yearly.” On 21st August Scott used an arrestment under the decree in the hands of the Bank of Scotland, Lauder, and on 22nd August he poinded the furniture and effects in the house occupied by Mrs Wilson as aforesaid.
Mrs Wilson thereupon presented a note of suspension and interdict against Scott in the Court of Session, offering to consign the sum decerned for by the Sheriff, and praying the Court to suspend said decree, recal the arrestments, and interdict the sale of her effects.
She pleaded—“(1) The decree being for £12, while the half-year's rent has, since the decree has been pronounced, been admitted by the respondent to be £6 only, ought to be suspended with expenses, and the arrestment thereunder ought to be recalled and the sale of the complainer's effects interdicted.”
The respondent pleaded—“(1) No jurisdiction.”
By section 30 of the Small Debt Act it was enacted—“No decree given by any sheriff in any cause or prosecution decided under the authority of this Act shall be subject to reduction, advocation, suspension, or appeal, or any other form of review or stay of execution other than that provided by this Act [ i.e., in section 31, which allows an appeal on certain specified grounds to the Circuit Court] either on account of any omission or irregularity or informality in the citation of proceedings, or on the merits, or on any other ground or reason whatever.”
On 25th August the Lord Ordinary on the Bills ( Lee), on consignation, granted interim interdict as craved, and on 4th September, having advised the note of suspension and interdict, with the answers thereto, he passed the note and continued the interim interdict.
The respondent reclaimed, and argued—The suspension was incompetent and ought to be refused, as the only manner in which the decree of a Small Debt Court could be brought under review was by an appeal on certain grounds to the Circuit Court—Small Debt Act, secs. 30 and 31; Graham v. Mackay, February 22, 1845, 7 D. 515; Turnbull v. Russell, November 15, 1851, 14 D. 45; Miller v. Henderson, February 2, 1850, 12 D. 656; Lennon v. Tully, July 12, 1879, 6 R. 1253; Robertson v. Pringle, February 5, 1887, 14 R. 474. This case did not fall within the rule of Samuel v. Mackenzie & Bell, infra, as nothing had occurred since the decree to furnish a reason why it should not be enforced.
Argued for the complainer—Though the Court of Session could not review a small-debt decree on the merits, they would suspend the diligence following on such decree where facts had emerged since the date of the decree which rendered it unjust that the decree should be enforced. In the present case the respondent had admitted, since the date of the decree, that £6 was the half-year's rent, whereas he had got decree for £12 as the “half-year's” rent. That was just an admission that he had got decree for a sum for which he was not entitled to get decree, and furnished a good reason for suspension— Samuel v. Mackenzie & Bell, November 29, 1876, 4 R. 187; Wilson v. Stronach, January 9, 1862, 24 D. 271.
At advising—
Now, the answer made to this note is, that the process is incompetent, because the decree which is sought to be suspended is a decree pronounced in the Small Debt Court in terms of the Small Debt Act (1 Vict. c. 41), and that the jurisdiction of this Court is excluded. An attempt was made to distinguish between the suspension of the decree itself and the diligence following upon it, but it will be seen at once by reference to the Small Debt Act that there is no room for such a distinction, because the 30th section provides that “No decree given by any sheriff in any cause or prosecution decided under the authority of this Act shall be subject to reduction, advocation, suspension, or appeal, or any other form of review, or stay of execution, other than that provided by this Act”—that is to say, by the immediately following section (sec. 31), which provides for an appeal to the Court of Justiciary on certain specified grounds.
The construction of these sections of the statute have been made the subject of several judgments of this Court, the first of which is the case of Graham v. Mackay, 7 D. 515. That was a very strong case for sustaining the jurisdiction of this Court, for there the complaint was that the Sheriff had no jurisdiction over the defender, and could not pronounce a decree against him. If any ground could have been found as an exception to the general rule laid down by the statute, that would most readily have suggested itself, because if there is no jurisdiction to pronounce a decree, then there is no decree. The Court, however, disregarded that consideration, and held that everything called and bearing to be a small-debt decree must receive effect unless set aside in the manner prescribed by the 31st section of the Act.
The respondent here got a decree for £12, but it is said that by mistake the £12 was described as rent for half-a-year, whereas it
Page: 129↓
It is quite true that subsequent to the case of Graham v. Mackay certain learned Judges in the Outer House have departed from the rule so plainly laid down there, misled, I think, by a phantom light which is generally called “substantial justice.” But these departures have been corrected by appeal to the Inner House. “Substantial justice” in the abstract may be the maximum bonum, and in the smooth current of the administration of justice, where nothing intervenes to prevent it, there is no reason why “substantial justice” should not always be done. But there are many inconveniences and considerations of public policy that some times intervene, and are recognised by the Legislature as good grounds for refusing effect to the plea of “substantial justice” in any particular class of cases, and a court of law is bound to subordinate the wisdom of the philosopher and the scientific jurist to the wisdom of the Legislature. We have occasion some times to lament that the wisdom of the Legislature is expressed in terms somewhat approaching to the ambiguity of the Delphic Oracle, but if the Legislature speaks distinctly and without ambiguity, then it is the sole guide for a court of law. So, in the present case, I apprehend that “substantial justice” coming into conflict with a precise and unambiguous enactment is naught, and must go to the wall. The wisdom of the Legislature must prevail over everything.
This doctrine, and the particular rule established in the case of Graham v. Mackay, have been repeated in several later cases, which it is unnecessary for me to go over, but they repeat in almost so many words the rule laid down in the case of Graham v. Mackay.
It is necessary, perhaps, to add, in conclusion, that there may be facts emerging subsequent to the date of the decree which will prevent the holder of the decree putting it in force. If the defender can show that his debt has since been paid or otherwise discharged, that will be a good ground for preventing the decree being put in force, but there is no case of that kind here. Perhaps the best and most instructive illustration of the reservations under which the general rule must be accepted is the case of Samuel v. Mackenzie & Bell, which was the case of a discharge granted in English bankruptcy proceedings. That discharge, which came into effect only after the decree in the Small Debt Court was pronounced, was pleaded successfully as a ground for suspending the execution of diligence.
For these reasons I am in favour of recalling the interlocutor of the Lord Ordinary, and refusing the note.
As a matter of principle, I think that Mr M'Lennan is right in this, that it is quite competent to have diligence suspended, even when it follows on a decree under the Small Debt Act, where the grounds of suspension do not touch the validity of the decree itself, as in the case mentioned by your Lordship. If the complainer came forward and produced a receipt for the amount, it would be impossible to say that we could not entertain that as a good ground for suspending diligence, and other illustrations of the same principle might be given. There is, however, nothing of that sort here. Suspension is sought on the ground of admissions made by the respondent since the decree was pronounced, but all that is admitted is, that while the decree is for a sum of £12, the note of claim in the Small Debt Court sets forth by mistake that that sum is due for a half-year's rent, whereas in point of fact it was a whole year's rent. It is not admitted, even if that were sufficient, that the sum is not due. On the contrary, it is averred, and not disputed, that the sum is due, and all that is said is that there was a clerical error in the state of claim in respect of which the decree was pronounced.
On these grounds I think that the note of suspension should be refused.
In the present case an attempt has been made to show from the correspondence that something has occurred since the decree was pronounced to prevent the holder from enforcing it, but having given my best consideration to the correspondence, I am
Page: 130↓
The only point which appears to me to require consideration in this case is, whether such facts have emerged here, and whether the respondent's letter can be construed as an admission that he obtained the judgment in the small-debt decree on a false statement of the facts, but that he meant to enforce it, on the ground that he would have got it all the same if the facts had been truly stated. I do not know whether that might not be a good ground for staying the execution of the decree if it was admitted that it had been obtained by something like fraud. It is quite clear, however, that that is not the meaning of the letter. The only admission made is that there was a clerical error in the statement of claim, and I do not see that that in any respect invalidates the decree, or affords a ground for reviewing it, or staying execution.
Even if substantial justice had not been done in the case, we could not review the decree, as the Act explicitly excludes the jurisdiction of this Court; but it is satisfactory to see that no substantial injustice has been done, as the complainer does not dispute that the sum decerned for is due under the contract of lease between her and the respondent. I therefore cannot see any reason why we should stay execution of this decree.
The Court recalled the interlocutor of the Lord Ordinary, repelled the reasons for suspension, and refused the note.
Counsel for the Complainer— M'Lennan. Agent— James Skinner, S.S.C.
Counsel for the Respondent— G. Watt. Agent— John Macmillan, S.S.C.
