Scottish Court of Session Decisions

At advising—

Lord President—The Debtors Act of 1880, which abolished imprisonment for civil debt, made an exception in the case of decrees for aliment, and therefore under that statute, of course, a party holding a decree for aliment could proceed to do execution in the ordinary form by charging the debtor, and then following that up by imprisonment. But then this new statute of 1882 interposed between the creditor and his debtor a provision that the creditor should not imprison his debtor unless upon an application by the creditor the Sheriff shall grant a warrant to that effect. This application, it is enacted, the Sheriff shall dispose of summarily, and without written pleadings, and the only ground for stopping the diligence of the creditor is that the debtor is unable to pay.

That is a very singular form of process. It is a statutory obstruction to the diligence of the creditor; there is to be no judgment by the Sheriff, but the statute just vests in the Sheriff a discretionary power of saying whether the creditor is to imprison his debtor or no. The provision of the statute is as follows:—that “the failure to pay shall be presumed to have been wilful until the contrary is proved by the debtor, but that a warrant of imprisonment shall not be granted if it is proved to the satisfaction of the Sheriff or Sheriff-Substitute that the debtor has not, since the commencement of the action in which the decree was pronounced, possessed or been able to earn the means of paying the sum or sums in respect of which he has made default, or such instalment or instalments thereof as the Sheriff or Sheriff-Substitute shall consider reasonable.” Now, in speaking of proving “to the satisfaction of the Sheriff,” taken in connection with the provision that the procedure is to be summary, it is obvious that the statute does not contemplate a regular proof, but merely that the Sheriff shall satisfy himself, by calling the parties before him, whether the debtor is able to pay the sum decerned for, or whether he is wilfully withholding funds which he has got. Under such a proceeding the Sheriff is not to pronounce any judgment or decree capable of being extracted, but is merely to grant or refuse a warrant. Just as in a criminal application for a warrant to apprehend a prisoner the magistrate merely grants or refuses a warrant, so it is the same here. There is a considerable resemblance between the two classes of cases, because imprisonment under this statute is intended to be in pœnam. That is made clear by subsection 6 of section 4, which provides “that the creditor, upon whose application the warrant of imprisonment is granted, shall not be liable to aliment or to contribute to the aliment of the debtor while incarcerated under such warrant; but that the incarcerated debtor shall be subject to the enactments and rules as to maintenance, work, discipline, and otherwise applicable to the class of prisoners committed for contempt of Court.” It is plain also that the imprisonment is nothing more than a penalty on the debtor from the provision in the statute that the imprisonment is not to operate as a discharge of the debt, and that though the debtor suffers imprisonment the debt is to subsist. It is also provided that after imprisonment has been suffered a new warrant may be issued at intervals of not less than six months, provided the Sheriff is satisfied that the refusal to pay on the part of the debtor is wilful.

Now, I think that the proposal to bring such a deliverance of the Sheriff here by way of appeal is incompetent. I quite assent to the observation made by Mr Dickson that the right of appeal to this Court cannot be taken away except by express enactment. But that applies only to the case of judgment, and we have no judgment here. The statute has thought fit to give a discretion to the Sheriff, and his deliverance upon the application is final as regards that application. If the party can show better grounds, then another application to the Sheriff can be made.

Lord Mure—This statute confers on the Sheriff or Sheriff-Substitute a discretionary power to grant imprisonment in certain circumstances, and I think the matter should not go further than the particular officer to whom the application is made. There are no written pleadings, and there is before us no evidence, nor is there any provision for a record of it being kept to enable us to say whether the Sheriff was right or wrong. It seems to me to be just like refusing an application for cessio hoe statu.

Lord Adam—I am of the same opinion. It appears to me that all the Sheriff could competently do was to grant or refuse a warrant. He was bound to grant a warrant unless the debtor satisfied him that he had not earned anything since the date of the decree. It is left entirely to the discretion of the Sheriff to say whether that is the case or not, and the fact that no record of the proceedings is to be kept shows that it was not intended that the deliverance should be appealable. I cannot see that the refusal or granting of a warrant is a decree in any sense. I think this resembles the applications made in criminal proceedings, for the imprisonment under the statute is in pœnam.

Lord Shand was absent.