Scottish Court of Session Decisions

The remaining question is, whether the deviation is such as to have prevented substantial justice being done. It is in accordance with substantial justice that when a creditor's right is affirmed his remedy must be granted. It may also be pointed out that the landlord's hypothec followed by the use of sequestration gives him a preference as against other creditors, whereas if he were left, as was suggested, to an ordinary poinding he would have no preference. I consider that this is a case of deviation from the statutory requirements which has prevented substantial justice being done, and I think the appeal should be allowed, and that we should remit to the Sheriff to grant warrant of sale as concluded for.

Lord Kincairney—I am not prepared to differ, but I feel greater difficulty in this case than your Lordships seem to have felt. Appeals to this Court under the Small Debt Act should not be readily granted. Review is permitted only in very exceptional cases. The Act in section 5, with which we are concerned, provides that the Sheriff on hearing the application for sequestration “may either recal the sequestration in whole or in part or pronounce decree for the rent found due, and grant warrant for the sale of the sequestrated effects.” The argument is, that if the sequestration is not recalled in whole or in part, the Sheriff must needs, as a matter of form, give an order for the sale of the sequestrated effects. I doubt that. That may be the usual and proper course, but the Sheriff may think that the remedy by poinding is sufficient, and if he thinks so may he not simply pronounce decree for the rent with a power of ordinary poinding, as was here done? I am not clear that it is a deviation from the statute for the Sheriff to refuse a warrant for the sale of the sequestrated effects if he thinks that the landlord can work out his remedy by poinding.

Further, mere deviation in point of form from the statutory enactments does not render an appeal to this Court competent. The appellant must show that the irregularity prevented substantial justice. He must complain not of a mere formal mistake but of an injury. Now, here the appellant got decree for his rent, and warrant for carrying that out by poinding. By the right which the Sheriff has given him he might have recovered his rent, but he has never tried to carry out the warrant of poinding. I do not know that in these circumstances the appellant having a remedy he has not tried to put in force can come here complaining of substantial injustice. Has he shown that any harm has been done to him? These are my difficulties, but I do not hold them so strongly as to lead me to dissent when they appear insufficient to your Lordships.

Lord Justice-Clerk—I have no vote unless your Lordships differ. I think that your Lordships agree that the appellant was entitled to be granted a warrant of sale of the sequestrated effects, and therefore I only express my opinion in supplement. It is the ordinary right of a landlord who has obtained sequestration to get warrant. The Sheriff could of course have recalled the sequestration in whole or in part, but he left the sequestration standing. If he does so he must carry out the ordinary sequence of sequestration by granting warrant of sale, and if he does not do so, he, on the face of it, deviates from the statute. The deviation, I think, involves substantial injustice. It may be that the appellant here could work out his remedy by means of an ordinary poinding. That depends upon circumstances, and I do not think that we must inquire into the circumstances here. If the deviation from the statute is one which may inflict substantial injustice, we must take it on the footing that substantial injustice has been inflicted. It is not that the appellant may not work out his right and get his rent in some other way, but that he is deprived of the high right actually his in virtue of the sequestration.