Scottish Court of Session Decisions

Robertson's trustees obtained a decree for £104, 8s. 7d, before the Sheriff of Ross, against Donald and John Macdonald, some time residing at Dunoornie. They gave a charge on the decree, and Macdonald presented a bill of suspension, which, on November 10, 1832, was refused. On February 28, 1834, they gave another charge on the decree, after the expiry of which, a poinding of certain crop and stocking was executed, and the poinded effects were sold for £97. The extract of the decree had been made in conformity with the Act of Sederunt January 27, 1830, but was not in terms of the Act of Sederunt March 6, 1829.

On July 10, 1834, Macdonalds raised a reduction of the decree of the Sheriff, and of the poinding and subsequent procedure as irregular; they also concluded for damages. At the same time, they presented again a bill of suspension, which the Lord Ordinary (Fullerton) refused, with expenses, “in respect that the suspension involves the very questions, which are raised in more competent form in the reduction, and that it is offered without caution, or only on juratory caution.”

On 6th August, Macdonald presented another bill of suspension on juratory caution, in which the only irregularities of procedure which were specified related to the steps for following up the decree of the Sheriff with a charge, and poinding and sale. Robertson's trustees pleaded—

1. The bill of suspension was incompetent, being truly a third bill. ^1.

2. There was a regular execution of charge produced, and it could only be impeached as false in a reduction. ²

3. It was incompetent, even if any irregularity had occurred in the poinding, because that diligence had been carried through to its full effect, and the poinded goods were sold, so that nothing was left to suspend. The proper action for trying the alleged irregularities was the depending action of reduction and damages.

4. In reference to the balance of debt still due under the decree charged upon, no specific grounds were stated to warrant a suspension, as the extract was in conformity with the Act of Sederunt January 27, 1830, and that was the regulating Act of Sederunt in regard to a Sheriff Court decree.

In these circumstances, the bill ought not to be passed on juratory caution. Macdonald answered.

1. That this was truly a second bill, as the bill of suspension in November, 1832, was of a prior charge, though on the same decree. And as that bill was refused within four days of the meeting of the Court, the objection would have been as good to the preceding bill as to this; and it would equally have applied, however irregular the new charge might be against which it was offered. The bill was therefore clearly competent.

2. The execution of charge was false and fabricated.

3. The suspension was competent as to the balance of debt still appearing due under the decree, after imputing the price of the poinded goods towards payment. And it was competent to state the irregularities of the poinding, as affording, prima facie, good counter claims against the chargers in the action of reduction and damages; and, therefore, entitling the suspenders to have the bill passed on juratory caution.

4. The extract had no docquet annexed to it, in the form prescribed by Act of Sederunt March 6,1829, and this alone was a sufficient ground

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¹ A. S. July 11, 1828, §15.

² Ramsay, Dec. 13, 1828 (ante, VII. 193); Allison, Jan. 31, 1829 (ante, VII. 355); Macqueen, May 20, 1834 (ante, XII. 610).