Scottish Court of Session Decisions

This was an action of suspension of a charge and of interdict of diligence following thereon, raised by John Mackay, labourer, against the Parish Council of Resolis.

The facts of the case were as follows In an action raised in the Sheriff Court by the respondents against the suspender for payment of advances made by the latter for support of an illegitimate child, of which they averred that the defender was the father, the Second Division, on 5th April 1898, ordained the suspender to make payment to the respondents of £1, 6s. 5d., and subsequently decerned against him for £46, 19s. 2d., being the amount of the respondents' expenses.

Following upon these decrees the suspender received a schedule of charge at the instance of the respondents, charging him to pay the aforesaid sums to them within fifteen days “under the pain of poinding or imprisonment.”

The suspender averred—“(Stat. 5) The said charge is irregular and inept. The complainer is charged to pay the various sums set forth in it under the pain of … imprisonment. Imprisonment cannot competently follow on a charge given in the circumstances in which the said charge was given. Reference is made to the Civil Imprisonment (Scotland) Act (45 and 46 Vict. c. 42), secs. 3 and 4. The charge is therefore incompetent, and falls to be suspended.”

The respondents, in answer, referred to the charge, and averred—“(Ans. 5) The respondents have no intention of imprisoning the complainer in order to enforce the decree, and undertake not to do so.”

The suspender pleaded, inter alia—“1. The complainer is entitled to suspension as craved with expenses, in respect (1) that the charge sets forth a penalty which is incompetent.”

On 14th December 1898 the Lord Ordinary ( Pearson) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel upon the note of suspension and interdict, and answers thereto, on the complainer amending his note to the effect of offering caution or consignation for the amount of the sums charged for, passes the note,” &c.

The Civil Imprisonment (Scotland) Act 1882 (45 and 46 Vict. c. 42), sec. 4, enacts that “Any sheriff or sheriff-substitute may commit to prison for a period not exceeding six weeks … 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.”

The suspender reclaimed, and argued—The Lord Ordinary had in effect insisted upon the suspender finding caution before the note was passed. He was wrong in doing so. The penalty specified in the charge was poinding or imprisonment. But imprisonment for debt was restricted by section 4 of the Civil Imprisonment Act of 1882 to cases of aliment, and a debt incurred by a father for advances made by the parochial authority for the support of his illegitimate child was not an alimentary debt— Tevendale v. Duncan, March 20, 1883, 10 R. 852; Cain v. M'Cohen. May 31, 1892, 19 R. 813. These cases decided that a quasiassignee of an alimentary claim could not inflict the penalty of imprisonment, and consequently the charge was radically bad. The suspender having made out a prima facie case, was consequently entitled to have the question tried on the merits without finding caution. To compel him to do so would be to place him, a poor man, in a most disadvantageous position.

Argued for the respondents—It must be admitted that imprisonment was not a penalty available to the Parish Council against the pursuer. But the charge here was in terms of the Personal Diligence Act 1838; it merely echoed the language of the extract-decree on which it proceeded, and the suspender would suffer nothing by it, for if the respondents applied to the Sheriff for warrant to imprison him, he would have an opportunity of convincing the Sheriff, within whose jurisdiction the question properly and exclusively lay, that the debt was not alimentary. The suspender had stated no valid reason why he should not find caution.