Scottish Court of Session Decisions

Whyte, Ridsdale, & Company, importers, London, the holders of a decree obtained in the Court of Session against a defender resident in Thurso, presented a petition to the First Division in which they craved the Court to grant warrant to serve the charge by post in the manner prescribed by the Citation Amendment (Scotland) Act 1882 (45 and 46 Vict. cap. 77), or otherwise to grant warrant to a Sheriff-officer to serve it.

The petition stated—“That the petitioners have obtained decree in absence in an action at their instance in the Court of Session against William Murray, cycle agent, Thurso, for payment of £55, 9s. 11d. sterling with expenses, which decree they extracted on the 7th day of June 1912. That at the time of the passing of the Citation Amendment (Scotland) Act 1882 there were sixty-six messengers-at-arms practising in Scotland. There are now only thirty-four, of whom fifteen are in Edinburgh and Glasgow. That there is now no messenger-at-arms in Caithness, the nearest messenger-at-arms being in Inverness, a distance of about 100 miles. That the nearest sheriff-officer is in Wick, which is distant about 20 miles from Thurso.

By the Court of Session Act 1868, sec. 19, services of summonses and citations of witnesses may be made by sherifl-offlcers in counties or districts of counties where there is no resident messenger-at-arms, but no provision is made for the execution of diligence in similar circumstances.

By the Sheriff Courts (Scotland) Act 1907, sec. 49, it is provided that ‘Where a charge is necessary upon a decree for payment of money granted in the Small-Debt Court and the place of execution of the charge is more than 12 miles distant from the seat of the Court where such decree was granted, a charge may be given by post in the manner prescribed by the Citation Amendment (Scotland) Act 1882.’”

The prayer of the petition was as follows—“May it therefore please your Lordships to grant warrant to charge the defender the said William Murray upon the said decree by post in the manner prescribed by the Citation Amendment (Scotland) Act 1882; and further, to grant warrant to any Sheriff-officer in Caithness on the expiry of said charge to carry into execution all legal diligence competent to follow upon said charge should the same expire without payment having been made; or otherwise to grant warrant to any sheriff-officer in Caithness to charge the said William Murray upon the said extract-decree at the petitioners' instance, and thereafter to carry into execution all legal diligence competent to follow upon said charge should the same expire without payment having been made; to dispense with the reading of the minute book, and to authorise a certified copy of the interlocutor to follow hereon to be used in place of extract; or to do otherwise as to your Lordships shall seem proper.”

Page: 873↓

The opinion of the Court (the Lord President, Lord Kinnear, Lord Johnston, and Lord Mackenzie) was delivered by