Scottish Court of Session Decisions

This was an appeal against an interlocutor of the Sheriff-Substitute at Dumfries dismissing an application at the instance of Mrs Helen M'Kay or Crosbie, residing in Edinburgh, wife of John H. Crosbie, for a warrant of imprisonment, under the Civil Imprisonment (Scotland) Act 1882, sec. 4, against her said husband, in respect of his failure to implement a decree for aliment.

The facts of the case were as follows:—In an action of adherence and aliment at the instance of the pursuer against the defender decree was pronounced in the Court of Session on 30th October 1897 ordaining the defender to pay to the pursuer the sum of £50 sterling yearly for aliment during the joint lives of the spouses.

The defender having failed to pay the aliment regularly, on 11th May 1901 he was charged under pain of imprisonment to make payment of the balance of aliment due by him for the preceding four years, amounting to £119.

The defender allowed this charge to expire without payment.

The Civil Imprisonment (Scotland) Act 1882 (45 and 46 Vict. c. 42) enacts as follows:—Section 4—“Subject to the provisions hereinafter contained, any sheriff or sheriff-substitute may commit to prison for a period not exceeding six weeks, or until payment of the sum or sums of aliment and expenses of process decerned for, or such instalment or instalments thereof as the sheriff or sheriff-substitute may appoint, or until the creditor is otherwise satisfied, any person who wilfully fails to pay within the days of charge any sum or sums of aliment, together with the expenses of process, for which decree has been pronounced against him by any competent court: Provided … (2) that the application shall be disposed of summarily and without any written pleadings; (3) that the failure to pay shall be presumed to have been wilful until the contrary is proved by the debtor.” …

On 22nd November 1901 the pursuer made the present application to the Sheriff-Substitute at Dumfries, in which she prayed the Court to grant warrant for the apprehension and imprisonment of the defender, whom she designed as “now or lately residing at No. 43 Westmoreland Street, Crosshill, Glasgow,” and on the same date the Sheriff-Substitute ordered service of the petition to be made on the defender, and ordained him to appear to answer thereto on 3rd December following.

The defender had formerly resided in Glasgow, but was now usually resident in Carlisle.

The petition and deliverance were duly served upon the defender in Dumfries personally during a visit there on business, and he appeared in answer to the citation.

On 3rd December 1901 the Sheriff-Substitute, in respect that an agent who appeared for the defender stated that the defender was not subject to the jurisdiction of the Court, adjourned the diet in order that the pursuer's agent might consider this plea.

Thereafter the Sheriff-Substitute ( Campion) having heard parties, on 17th December 1901 pronounced this interlocutor—“The Sheriff-Substitute having considered the petition, after a hearing thereon, dismisses the application as presented, and decerns.”

Note.—“As to the broad question of jurisdiction, I think Mr Dove Wilson fairly sums up the decisions on this point—‘The application where practicable should be presented to the sheriff to whose jurisdiction the respondent is subject, but it would seem competent to present it also to any sheriff within whose territory the respondent is found.’ Further, it has been settled that persons who have no fixed place of abode must be cited where they can be found—that is, the pursuer must follow his debtor when it is all he can do— Linn v. Casadinos, 8 R. 849, 18 S.L.R. 603, and the case of the emigration agent referred to at the debate.

The objection to this application seems to me that we have no averment of any attempt being made to cite the respondent at his late or present place of abode, or that after reasonable inquiry it has not been possible to find him.

The respondent is stated to be a commercial traveller, lately residing at No. 43 Westmoreland Street, Crosshill, Glasgow, but to have moved to Carlisle in the ordinary course of business. Now, I should doubt the Supreme Court approving the personal citation, say of a Glasgow commercial traveller, with may be a business and residential address in Glasgow, who happened to arrive by steamer on business at Lerwick, in order to render him subject to the jurisdiction of the Sheriff Court there, and enforce the decree of the Supreme or any other competent court. The present is not of course such an extreme case, but the present application to have the respondent apprehended may be productive of great hardship. So while conceding the general principle of jurisdiction, I am of opinion that despite the personal citation the present application is certainly inexpedient and doubtful without further detail of reasons for making such application to this Court.”

The pursuer appealed, and argued—The Sheriff-Substitute had jurisdiction to deal with the matter and ought to have ordered inquiry. A sheriff had power to enforce such a decree by imprisonment, provided the party liable under the decree had been found in Scotland, although at the time he was usually resident in England—Civil Imprisonment (Scotland) Act 1882 (45 and 46 Vict. c. 42), sec. 4. The case of Strain v. Strain, June 26, 1886, 13 R. 1029, 23 S.L.R. 739, was distinguishable from the present case, as there the Sheriff-Substitute had dealt with the merits of the case, and so an appeal was incompetent. Here the Sheriff-Substitute had refused to exercise his jurisdiction, and his judgment could therefore be made the subject of appeal— Penny v. Scott, October 23, 1894, 22 R. 5, 32 S.L.R. 9.

Counsel for defender was not called upon.