|
FIRST DIVISION, INNER HOUSE, COURT OF
SESSION
|
Lord President
Lord Osborne
Lord Kirkwood
|
[2006] CSIH 4
XA90/05
OPINION OF THE LORD
PRESIDENT
in
APPEAL
From the Sheriffdom
of Glasgow and Strathkelvin at Glasgow
in the cause
SUPERDRUG STORES
PLC
Pursuers and
Appellants;
against
NETWORK RAIL
INFRASTRUCTURE LTD
Defenders and
Respondents:
_______
|
|
|
Act: Keen, Q.C., Nicol,
Advocate; Fyfe Ireland
WS (Pursuers and Appellants)
Alt:
Peoples, Q.C.; MacRoberts,
Glasgow (Defenders and Respondents)
27 January 2006
[1] This
is an appeal from the sheriff principal who, on 26 July 2005, refused an appeal
from the sheriff, who had, on 27 January 2005, dismissed as out of time an
application made to him by way of a summary cause in furtherance of section
1(1) of the Tenancy of Shops (Scotland) Act 1949. An appeal lay from the sheriff to the sheriff
principal on a point of law (Sheriff Courts (Scotland) Act 1971, section
38(a)), the prescribed mode of appeal being by stated case. An appeal lies from the sheriff principal to
this court on a point of law if the sheriff principal certifies the cause as
suitable for such an appeal (Sheriff Courts (Scotland) Act 1971, section
38(b)). The sheriff principal has so
certified the present cause.
[2] I
am obliged to Lord Osborne for his narrative of the background circumstances
and of the submissions of counsel.
Subject to certain matters, to which I subsequently refer, I adopt that
narrative. As, however, I have the
misfortune to disagree with your Lordships in the result, it is necessary to
explain my reasons for doing so.
[3] The
stated case signed by the sheriff contained 14 questions, each purportedly a
question of law. The sheriff principal
criticised (in my view with good reason) the form of many of these
questions. Some of them he found to be
unanswerable and accordingly declined to answer. The eight which he did answer included
question [1], which was in the following terms:
"On the facts
found in Finding-in-Fact (17) that the Summons was received by the Sheriff
Clerk's office and stamped marked 'Lodged' and dated on 16 December 2004, did
the sheriff err in law in holding that the pursuers had not applied timeously
in terms of the Act?".
These eight also included question
[14], which was in the following terms:
""Did the
sheriff err in law in deciding that authentication of the summons did not
determine the date upon which an application is made to the Sheriff for the
purposes of section 1(1) of the Act?".
Both these questions to the sheriff
principal answered in the negative.
These answers in effect rejected each of what might be described as the
primary legal propositions of the parties, namely, (1) that the events of 16
December 2004 of themselves pointed conclusively to the appellants having
"applied" to the sheriff on that date (the appellants' contention) and (2) that
the appellants could not be said to have so "applied" until the summons was
authenticated on 17 December 2004 (the respondents' contention).
[4] The
sheriff principal answered the six remaining answerable questions in the
affirmative. These questions, in a
variety of formulations, put in issue whether, in determining the date on which
the pursuers had "applied" to the sheriff, it was legitimate to have regard to
events both on 16 and on 17 December.
[5] Before
addressing the sheriff principal's grounds of decision I would make two
observations. First, the appellants'
sole ground of appeal to this court is in the following terms:
"That the
Sheriff Principal erred in law in his determination that the presentation by
the pursuers and acceptance of the summons on 16 December 2004 did not amount
to a timeous 'application' in terms of the Tenancy of Shops (Scotland) Act
1949".
That formulation is itself
contentious. I set out below the sheriff
principal's reasoning. While in that
reasoning he accepts (and determines) that there was on 16 December
"presentation" of the summons by the appellants, I can find no reference to any
determination by him that there was "acceptance" of the summons on that
date. If by "acceptance" is meant only
the circumstance that on that day a clerk in the sheriff clerk's office took
into his hands a summary cause summons and then stamped that document "Sheriff
Clerk, Glasgow LODGED 16 DEC. 2004" before it was returned to the appellants'
representative (Mr. Donnelly), there is no difficulty. If, however, by "acceptance" is meant more, I
can find no basis for it as a feature of the sheriff principal's determination.
[6] The
second observation is this. The sheriff
found as a fact that the summons had been taken away by Mr. Donnelly on 16
December. Despite a submission to the
contrary made to him by counsel for the appellants, the sheriff principal held
that that finding could not be interfered with.
Counsel for the appellants had also submitted to the sheriff principal
that he should conclude that, although the sheriff had made no finding of fact
as to what had happened to the Form E200 when Mr. Donnelly left, the only
inference that could be drawn was that it had remained in the sheriff clerk's
office. The sheriff principal, having
considered the sheriff's account of the evidence led before him and his
evaluation of it, was unable to accept that submission. In my view, he was clearly entitled to do
so. Accordingly, so far as concerns the
whereabouts of the Form E200 between 16 and 17 December (and any inference
which might be drawn as to the ability of the sheriff clerk, prior to the
latter date, legitimately to rely on that form as a basis for recovering the
chargeable fee), the matter is simply not proved one way or the other.
[7] The
sheriff principal rejected the respondents' contention that it was
authentication of the summons which determined the date upon which the
application was made to the sheriff. I
agree with that conclusion and with the sheriff principal's reasoning which led
to it. I find it unnecessary to say
anything further on that matter. The
sheriff principal continued:
"(52) What is meant by 'apply' in the context of
section 1(1) of the [1949] Act? In my
opinion, it means the presentation of a procedurally valid summons accompanied
by the appropriate fee to the sheriff clerk together
with a request, implicit or explicit, that that summons should be processed. These are all matters within the sole control
of the applicant and do not depend in any way on anything done by the sheriff
clerk. This definition is therefore
entirely compatible with the dicta in the cases under the Company Directors Disqualification
Act 1986 to which I was referred by counsel for the appellants. I have emphasised the latter part of the
definition because it is essential.
Unless such a request is made the presentation of the summons is
meaningless. Of course, in most cases,
the presentation itself will amount to an implicit request to process the
summons, but in some cases something more will be required.
(53) Looking to that definition, can it be said
that what happened on 16 December in the present case amounted to an
application? In my opinion, it can
not. It is true that a summons in the
appropriate form was presented and that it was accompanied by a form which
could be used as the basis for payment of a fee. But the appellants' law agents failed to give
any direction to the sheriff clerk that the summons should be processed. Findings 24-26 are vital findings in this
context. The person to whom Mrs. Bain
spoke in the office of the appellants' solicitors said that 'It was likely that
someone would be coming in the next day'.
[Finding 24] This demonstrates a
degree of uncertainty. It could not,
contrary to the submission of counsel for the appellants, amount to a request
to Mrs. Bain to fix a hearing before a sheriff for the following day. The sheriff has found (Finding 25) that Mrs.
Bain left to the law agents the decision whether the summons should be placed
before a sheriff. That decision,
whenever it was made, was clearly not communicated to the sheriff clerk until the
17th. Thereafter Mr. Donnelly took the
summons away with him [Finding 26] thus reinforcing the impression that no
decision as to future procedure had been taken". (The references in square brackets have been
added).
At para. (56) the sheriff principal
added:
"The fact that a
date stamp was imprinted on the summons on 16 December is of no
significance. That is all that was
done. No steps were taken to institute
any further procedure ... ".
[8] In
my view the sheriff principal's reasoning discloses no error of law. As he emphasised (and as I understand your
Lordships accept) the words in italics are, in my view, essential. Counsel for the appellants submitted to us
that the sheriff principal's formulation amounted to an error in law. I am unable to accept that submission. I accept that, if a summary cause summons,
having been presented, is left in the hands of officials of the court with a
view to it being authenticated, whether by the sheriff clerk or by the sheriff,
a court could, and probably should, conclude that an application to the sheriff
had been made as from the time when it was so left. That might also be so in circumstances where,
albeit the summons is removed an unequivocal request is made to fix a hearing
before the sheriff. That is because from
that point onwards the person seeking to make the application has taken all the
steps which he can take to make that application; delay beyond that point is outwith his
control. There may, however, be circumstances
where notwithstanding "presentation", any future progressing of the summons to
authentication remains in the hands of the would-be applicant.
[9] In
the present case, if the sheriff principal's formulation was sound in law, as
in my view it was, it remained only for him, having evaluated the facts as set
forth in the stated case, to apply that formulation to them. No error of law is, in my view, disclosed in
that exercise. It was no doubt the
intention of the appellants' legal representatives that an application be made
to the sheriff and that it be made timeously.
It may be that, as at 16 December, the uncertainty, so far as they were concerned,
was restricted to whether the appellants should seek the normal period of
notice, as specified in the Rules, or a shortening of that period. But the outcome of this case cannot turn on
the mental state of these representatives;
it must turn on what happened procedurally. On the facts found by the sheriff, the
sheriff principal was, in my view, entitled to conclude that the legal test as
formulated by him had not been satisfied.
[10] To some extent at least the appropriate disposal of this case
turns on the specialties relative to applications made by way of summary
cause. These specialties include that
the action is commenced by a summons in one of a number of specially prescribed
forms (none of which requires to be signed by the pursuer or his solicitor),
that there is no provision in the rules for the "lodging" of that summons
(which after authentication is repossessed by the pursuer with an obligation to
return it at certain later stages) and that there is kept a register of summary
causes. Cases decided in the context of
processes governed by different rules are of limited assistance. Like the sheriff principal, I find no
incompatibility between my view on this case and dicta in certain other cases - such as Secretary of State for Trade and Industry v Josolyne 1990 S.L.T. (Sh. Ct.) 48, Secretary of State for Trade and Industry v Normand 1994 S.L.T. 1249 and Secretary
of State for Trade and Industry v Campleman
1999 S.L.T. 787. These cases were
concerned with different forms of process - the first with a summary
application, commenced by initial writ, the second and third with a petition to
the Court of Session. In particular, it
may be noted that in Normand Lord
Sutherland, in holding that an application had been made to the court on the
date upon which the petition had been lodged in court, proceeded on the basis
that under the relative rules "the rest of the procedure follows automatically"
as from that moment. That dictum tends to support the view that it
is when, and only when, the would-be applicant has taken a step which, without
more on his part, sets on course the appropriate judicial process that he can
truly be said to have made his application.
The sheriff principal was, in my view, entitled to conclude that, as at
16 December, that stage had not been reached.
[11] I should add in this connection that some reliance was placed
by junior counsel for the appellants on Rule 2.6(2) of the Act of Sederunt
(Summary Applications, Statutory Applications and Appeals etc. Rules) 1999
which provides that an application to which that rule applies "shall be lodged
with the sheriff clerk" within a prescribed time scale. The rule in question applies to a summary
application where the time within which the application, being an appeal under
statute or an application in the nature of an appeal, may be made is not
otherwise prescribed. That rule, which
is to be found in Rules concerned with summary applications within the meaning
of section 3(p) of the Sheriff Courts Act 1907, has no application to a summary
cause, as now provided for under section 35(1) of the Sheriff Courts Act 1971
and relative Rules. The Summary Cause
Rules 2002 do not, at least in the context of the initiation of procedure, make
any reference to lodgement as a procedural act.
[12] For the above reasons I would have refused this appeal.
|
FIRST DIVISION, INNER HOUSE, COURT OF
SESSION
|
Lord President
Lord Osborne
Lord Kirkwood
|
[2006] CSIH 4
XA90/05
OPINION OF LORD
OSBORNE
in
APPEAL
From the Sheriffdom
of Glasgow and Strathkelvin at Glasgow
in the cause
SUPERDRUG STORES
PLC
Pursuers and
Appellants;
against
NETWORK RAIL
INFRASTRUCTURE LTD
Defenders and Respondents:
_______
|
|
|
Act: Keen, Q.C., Nicol,
Advocate; Fyfe Ireland
WS (Pursuers and Appellants)
Alt: Peoples, Q.C.; MacRoberts, Glasgow (Defenders and
Respondents)
27 January 2006
The background circumstances
[13] The appellants are Superdrug Stores plc, a company incorporated
under the Companies Acts and having a registered office at Beddington
Lane, Croydon, Surrey. By a lease between Railtrack plc and the
appellants, dated 18 April and 13 May 1996, the appellants leased
from Railtrack plc certain heritable subjects known as and forming
Unit 13, The Caledonia Centre, Central Station, Glasgow. The date of entry was 8 January 1996 and the duration of the lease
was three years. The duration of
the lease was subsequently extended twice, by minutes of extension and
variation of lease, dated 14 and 26 January
1999 and 8 and 18 March
2002. In each case the
extension period was three years.
The present respondents have derived their interest as landlords in the
lease in consequence of having been vested in the interest of Railtrack plc
following the placing of that company in railway administration. The ish of the lease, following extension,
was 7 January 2005.
[14] By a notice of termination of tenancy, dated 24 November 2004, the
respondents intimated to the appellants that they wished to bring the tenancy
to an end at the date of the ish. The
appellants received service of that notice on 25 November 2004.
They wished the tenancy to continue, but were unable to obtain a renewal
of it on terms satisfactory to them. In
consequence, the appellants decided to invoke the provisions of
section 1(1) of the Tenancy of Shops (Scotland)
Act 1949. That enactment provides as
follows:
"1(1) If the
landlord of any premises consisting of a shop and occupied by a tenant gives or
has given to the tenant notice of termination of tenancy taking effect after
the passing of this Act, and the tenant is unable to obtain a renewal of his
tenancy on terms that are satisfactory to him, he may, at any time before the notice
takes effect and not later than the expiry of twenty-one days after the service
of the notice or after the passing of this Act, whichever is the later, apply
to the sheriff for a renewal of his tenancy."
Section 1(7) of the 1949 Act
provides:
"An application under this section shall be made by
way of a summary cause within the meaning of the Sheriff Courts (Scotland)
Act 1971."
It is a matter of agreement that the 21-day period
referred to in section 1(1) of the 1949 Act commenced on 26 November 2004 and expired at
midnight on 16 December 2004.
[15] At some time during the course of the afternoon of 16 December 2004, a
Mr John Donnelly, an employee of Messrs Fyfe Ireland,
WS, Edinburgh, the appellants' law agents, travelled to Glasgow
Sheriff Court.
Once there he tendered to a summary cause clerk the summons in the
present action and also a partially completed Form E200 in respect of that
summons. A Form E200 may be used to pay
court fees, if the firm presenting the initiating writ has made a credit charging
arrangement with the office of the sheriff clerk. The summary cause clerk thereafter referred
the case to a more senior colleague in the summary cause department. That colleague was a Mrs Caroline
Bain. The purpose of the referral was to
allow Mrs Bain to check the terms of the summons. That supervisory responsibility fell within
her duties in the department.
Mrs Bain checked the summons to confirm that the appellants'
solicitors had completed it in accordance with the requirements of the Summary
Cause Rules. As she did so, she saw that
someone in the department had stamped the first page of the summons with the pro forma stamp of the sheriff clerk's
office marked "Lodged" and dated 16 December
2004. She concluded that the
summons complied with the minimum requirements of the Summary Cause Rules as to
the form of the summons and the content of its accompanying statement of
claim. Glasgow
Sheriff Court had jurisdiction over the intended
proceedings. As she read the summons,
Mrs Bain noticed from paragraph 2 of the crave and paragraph 10
of the statement of claim that the termination date of the tenancy in question
would occur on 7 January 2005. With that in mind, she asked Mr Donnelly
if he required a shortened period of notice, because, if so, the summons would
require to be placed before a sheriff for that purpose. Mr Donnelly replied that he could not
appear before a sheriff.
Mr Donnelly then made a telephone call. During the course of that call he passed the
telephone to Mrs Bain. She spoke to
a male person who she assumed was a qualified solicitor in the office of the
appellants' law agents. The gist of her
discussion with that person was that she asked him if the appellants' law
agents wanted a shortened period of notice, since, if so, they would need
someone to appear before a sheriff.
There then followed a discussion about whether the law agents could
arrange for someone to come to Glasgow Sheriff Court
before 4.00pm, that being the time
when normal business for the day concluded. After that time only exceptional and emergency
applications would be dealt with. The
male person to whom Mrs Bain spoke indicated that, if she thought that
such a hearing was required, the law agents would be unable to arrange for
someone to appear before a sheriff by 4.00pm,
but would be able to do so the following day and that it was likely that
someone would be coming in the next day.
Mrs Bain did not say to the law agents that the summons had to go
before a sheriff. She left that decision
to the law agents themselves. After the
telephone call ended Mr Donnelly took the summons away.
[16] On 17 December
2004 a solicitor from the appellants' law agents brought the
summons back to the summary cause department of Glasgow
Sheriff Court.
The summons was then placed before a sheriff to consider the appellants'
request to shorten the period of notice.
Having heard from the appellants' solicitor, he granted that request to
the extent of shortening the period of notice to one of seven days. After that hearing, Mrs Bain completed
the administrative features of authenticating the summons. She changed the date on the pro forma stamp on the first page of the
summons from 16 to 17 in black ink, and initialled the change. She also completed the section on the stamp
relating to "Fee Paid" and, in particular, added "£39", "E200" and the number
"480690". The sum of £39 was the correct
court fee for the summons. The number
"480690" was the number on the form E200 which accompanied the summons. The appellants' law agents had completed the
form so far as they were required to do and had dated it 16 December 2004. A colleague of Mrs Bain, a
Miss McColligan, had completed the sheriff clerk's part of the form on 17 December 2004. Mrs Bain added in her own hand the return
date and the calling date in Box 6
of the summons. To do that she had to
cross out the erroneous dates Miss McColligan had entered earlier that
day. That same day, the summons was
entered in the Register of Summary Causes and given a unique process number
SE368/04. Thereafter the summons was
returned to the appellants' law agents.
Thus 17 December 2004
was the date of the first deliverance of the action. The summons was thereafter served on the
respondents, with an allocated return day of 30 December 2004 and a calling date of 6 January 2005.
[17] In due course, the respondents lodged answers to the
summons. In those answers they averred
that the present proceedings had been instituted after the expiry of
21 days after the service of the notice of termination of tenancy. They therefore contended that the action was
incompetent. At the allocated calling
date of the action on 6 January
2005, when both parties were represented, it became apparent that
the facts relevant to the issue of time bar were disputed. In these circumstances both parties'
representatives agreed that a preliminary proof restricted to the issue of time
bar was required to resolve their dispute on the relevant facts and law. The preliminary proof was assigned to 13 January 2005, but did not
commence on that date. It took place
over 2 days on 18 and 20 January
2005. Following the
preliminary proof, the sheriff made findings in fact, which I have already
summarised. He also found in law that
the appellants had applied to the sheriff beyond the period of time prescribed
in section 1(1) of the Tenancy of Shops (Scotland) Act 1949 and that the
action was accordingly barred by the passage of time. On the motion of the respondents, the sheriff
dismissed the action upon that ground.
[18] Thereafter, the appellants appealed to the sheriff principal,
by way of stated case. On 26 July 2005, the sheriff
principal refused the appeal. The
appellants have now appealed to this Court
against that interlocutor. They
have stated a single ground of appeal in the following terms:
"(1) That
the Sheriff Principal erred in law in his determination that the presentation
by the pursuers and acceptance of the summons on 16 December 2004 did not
amount to a timeous 'application' in terms of the Tenancy of Shops (Scotland)
Act 1949."
It should be explained that among
the questions of law for the opinion of the sheriff principal formulated by the
sheriff in the stated case was a question (14) in the following terms:
"Did the sheriff err in law in deciding that
authentication of the summons did not determine the date upon which an
application is made to the sheriff for the purposes of section 1(1) of the
Act?"
The respondents have taken a cross-appeal arising out of
the decision of the sheriff principal, in which they have stated a single
ground of appeal in the following terms:
"(1) The
learned Sheriff Principal erred in answering question 14 of the stated case in
the negative and deciding that authentication of the summons did not determine
the date upon which an application is made to the Sheriff for the purposes of
section 1(1) of the Tenancy of Shops (Scotland) Act 1949. (Network Rail Infrastructure Ltd v Superdrug Stores plc, Glasgow Sheriff
Court (unreported 15 March 2005) (unreported appeal 29 April 2005); Muir v Muir 1994 S.C.L.R. 182; Secretary
of State for Trade & Industry v Campleman
1999 S.L.T. 787; and Borthwick v Bank of Scotland 1985 S.L.T. (Sh. Ct.)
49)"
Submissions for the appellants
[19] Senior counsel for the appellants explained that he intended to
deal with the appellants' ground of appeal and the respondents' cross-appeal
together. His motion was that the appeal
should be sustained and that the case should be remitted to the sheriff to
proceed as accords with the application under section 1 of the 1949
Act. It was the submission of the
appellants that they had applied to the sheriff for a renewal of the tenancy in
terms of section 1(1) of the 1949 Act by making an application on 16 December 2004. On that date, a summary cause summons had
been presented to the offices of the sheriff clerk, when a date stamp was
applied to it bearing that date. That
date had subsequently been changed manually to 17 December 2004 following procedure on that latter
date in which a sheriff granted a motion to shorten the induciae. The manual change
in the date had been effected by the sheriff clerk. It was of importance that the representative
of the appellants' solicitors, at the same time as presenting the summons on 16 December 2004, had presented
the form E200, that being a form used to pay a court fee where the agent
involved had made arrangements for a credit account with the sheriff
clerk. The fee involved in this case was
£39, and appeared from the details written on the sheriff clerk's stamp. The form E200 had been handed in on 16 December 2004. On 17 December
2004 a solicitor arrived at the Sheriff
Court to make a motion before a sheriff for a
shortened induciae. At that stage no application was made to the
sheriff clerk; the solicitor had been taken before the sheriff. The application had been "authenticated" by
the granting of a motion for a shortened induciae
by the sheriff. In this case, Box 6
on the summary cause summons form, which, on completion, constituted a warrant
for service, had been signed by the sheriff.
That was in accordance with rule 4.4(2) of the Summary Cause
Rules. In terms of rule 4.4(3) the
authenticated summons constituted a warrant for service. Following that, the summons would have been
taken away, as authority for service.
The sheriff clerk's stamp on the face of the summons vouched
presentation of the summons on 16 December
2004. The summons went to
the sheriff on 17 December 2004,
bearing the stamp showing the date 16 December
2004. Execution of service
was effected on 17 December 2004
as appeared from the certified execution on page 11 of the appeal
print. The interlocutor of the sheriff
of 27 January 2005, by
which he dismissed the action, had proceeded upon the basis of the application
having been made on 17 December
2004. If that was the date
of the application, plainly it was out of time.
Under reference to the sheriff's findings in fact, senior counsel
emphasised that the summons had been tendered to a summary cause clerk on
16 December 2004 with a partially completed Form E200 as appeared from
finding in fact 15. On 17 December 2004 the date on
the Sheriff Court stamp was
changed from16 to 17 December, since Mrs Bain thought that the date
shown ought to conform with the date of the authentication of the summons. Plainly if no representative of the
appellants had returned after 16 December
2004 to attend to outstanding matters the summons would have
lapsed, if no action had been taken prior to the expiry of the lease. The appellants' position was that on 16 December 2004 by handing in
the summons and the Form E200, the appellants had done all that they could do
to make an application. Thereafter the
sheriff clerk had had a responsibility to react to that application in an
appropriate way. There was no finding
that the form E200 had been taken away on 16 December 2004.
The sheriff principal was correct to observe in paragraph 51 of his
opinion that it would be illogical to require that something that was outwith
the control of the applicant had to be done before the application could be
treated as made. Nothing was said or
done on 16 December 2004
to suggest that the summons was not to be progressed. The only matter left undone on that date was
the matter of authentication. In this
connection reference was made to finding in fact 24, to the effect that
the person that Mrs Bain spoke to indicated that, if she thought that a
hearing were required, the law agents would be unable to get someone to appear
before a sheriff by 4.00pm, but would be able to do that the following day and
that it would be likely that someone would be coming in the next day. It was plain that, throughout, the appellants
had sought authentication of the summons in an appropriate form. What had been done on 16 December 2004 rendered the Sheriff
Court entitled to the appropriate fee. They had the means of enforcing their
entitlement by means of the Form E200.
The only matter left outstanding on 16 December 2004 was the method of authentication
and the issue of the shortening of the induciae.
[20] The sheriff principal, in paragraph 52 of his opinion, had
expressed the view that the word "apply" in the context of section 1(1) of
the 1949 Act meant the presentation of a procedurally valid summons accompanied
by the appropriate fee to the sheriff clerk together with a request implicit or
explicit that that summons should be processed.
That proposition went too far and amounted to an error of law. If a presentation of a summons was made
accompanied by the appropriate fee, the applicant presenting such a summons
should be taken as intending the natural consequences of the act, that is to
say, the processing of it. There did not
require to be, in addition, some request that the summons should be processed. In any event, in the circumstances of this
case there was no uncertainty as regards the desire of the appellants that the
summons ought to be processed; the only uncertainty was as to the particular
method of processing. Another way of
looking at the situation was to ask whether, on 17 December 2004, a new application had been
made. The answer to that question had to
be in the negative; there was no finding of the making of a new application on
that date. The only matter in issue on
that date was how the summons presented the previous day was to be
processed. The fact that the sheriff
clerk had changed the date on the summons to conform with the date of
authentication was a matter completely outwith the control of the applicant. The changed date signified only that the
sheriff clerk considered that that was an appropriate date to insert in the
summons. The crucial part of the sheriff
principal's decision appeared in paragraph 53 of his opinion. He had concluded that what was done on 16 December 2004 did not amount
to an application. However, one had to
ask how the matter got before the sheriff on 17 December, if there had
been no application on 16 December.
If no person had come to the Sheriff Court
on 17 December 2004
to further the matter, no doubt the summons would, in due course, be held to
have been abandoned. However that was
not what happened. The only matters left
in doubt on 16 December 2004
were how the summons was to be processed and what the induciae were to be. In
paragraph 56 of his opinion, the sheriff principal had stated that the
date stamp applied to the summons on 16 December
2004 had been "cancelled" on the following day. That was an erroneous view of the facts. The date applied by the stamp on
16 December had been manually altered on 17 December. It was that act which had generated confusion
regarding the date of the application.
There was no basis for the view that the date of the application for the
purposes of section 1(1) of the 1949 Act was the date on which the summons
had been authenticated.
[21] Junior counsel for the appellants continued the submissions on
their behalf with a reference to certain authorities which might be of
assistance. The first of these was Secretary of State for Trade & Industry
v Josolyne 1990 S.L.T.(Sh.
Ct.) 48.
That was a case concerned with the operation of section 7(2) of the
Company Directors Disqualification Act 1986.
Under that sub-section, any application for a disqualification order had
to be made, except with leave of the Court, within two years of the date
upon which the company of which the person was or had been a director became
insolvent. In that particular case the
application had been lodged in Court within, but served upon the respondent
outwith, the two year period. The
respondent had pleaded that the application was time barred. Sheriff Principal R. D. Ireland
Q.C. had held that the tempus
inspiciendum was the date of the lodging of the application. In that case the application was constituted
by the presentation of the initial writ to the sheriff clerk at Aberdeen.
[22] The second case relied upon by the appellants was Secretary of State for Trade & Industry
v Normand 1994 S.L.T. 1249. It also was a case concerning the application
of section 7(2) of the Company Directors Disqualification Act 1986. An application under that Act had been made
by petition. The petition had been
presented within the two year period but the interlocutor granting a first
order for service had not been pronounced until the two year period had
expired. In the face of a plea of time
bar, the Court had held that, although an ordinary action did not commence
until it was served, petition procedure was initiated by the presentation of
the petition and section 7(2) of the Act was concerned with that date.
[23] Finally, junior counsel relied upon Secretary of State for Trade & Industry v Campleman 1999 S.L.T. 787, yet another case concerned with the
application of section 7(2) of the Company Directors Disqualification Act
1986. In that case the Court had held
that the application was made for disqualification as soon as the petition was
presented. In the circumstances of the
present case the application to the Court had been made on 16 December 2004.
[24] Further assistance could be got from an examination of the Act
of Sederunt (Summary Applications, Statutory Applications and Appeals etc.
Rules) 1999. Rule 2.6(1) dealt with
the time limit for the making of such applications. Under rule 2.6(2) an application to
which the rule applied had to be "lodged with the sheriff Clerk" within a
specified period. It was plain that the
crucial act was lodging with the sheriff clerk.
In the present case that had been done on 16 December 2004.
It was apparent from finding in fact 18, to the effect that the
summons complied with at least the minimum requirements of the Summary Cause
Rules as to the form of the summons and the content of its accompanying
statement of claim, that the application had indeed been made on the occasion
of the presentation of the summons to the sheriff clerk.
[25] In answer to questions by the Court, junior counsel accepted
that the manuscript content of Box 6
of the form of summons was completed on 17 December 2004.
Rule 5.1(1) of the Act of Sederunt (Summary Cause Rules) 2002
provided for the keeping by the sheriff clerk of a Register of Summary
Causes. It had been found as a fact that
the present summons had been entered in the Register of Summary Causes on 17 December 2004.
Submissions by senior counsel for
the respondents
[26] Senior counsel for the respondents moved the Court to refuse
the appeal and affirm the interlocutors in the Court below. The sheriff had been entitled to conclude
that the application had not been made on 16 December 2004.
It was accepted that the sheriff had found as a fact that the appellants
had applied to the sheriff beyond the period of time prescribed by the Act, but
that finding was, in effect, a finding in fact and law. Senior counsel then examined the provisions
of section 1 of the 1949 Act and drew attention to section 32 of the
Sheriff Courts (Scotland)
Act 1971, which conferred power upon the Court of Session by Act of Sederunt to
prescribe the procedure and practice to be followed in civil proceedings in the
Sheriff Court. Section 32(1)(c) was of importance. The power just mentioned included the power
to prescribe the form of any document to be used in, or for the purposes of,
any civil proceedings and the manner in which any such document was to be
authenticated. Authentication was not
the same as presentation.
Section 35 of the 1971 Act provided for summary causes. Summary causes were to include, under
section 35(1)(d) of the 1971 Act, proceedings which, according to the law
and practice existing immediately before the commencement of the Act, might
competently be brought in the sheriff's Small Debt Court, or were required to
be conducted and disposed of in the summary manner in which proceedings were
conducted and disposed of under the Small Debt Acts. Section 1(7) of the 1949 Act had been
amended to accommodate the provisions of the 1971 Act just mentioned. Senior counsel then proceeded to examine the
Act of Sederunt (Summary Cause Rules) 2002.
Chapter 4 dealt with the commencement of action, while
chapter 5 dealt with the Register of Summary Causes, service and return of
the summons. He pointed out that under
rule 4.1(1) a summary cause was to be commenced by summons in the form
specified. The summons was to contain a
statement of claim, as provided for in rule 4.2. The summons had to be served on the defender,
in terms of rule 4.3. In connection
with these matters reference was made to Sheriff
Court Practice, MacPhail, 2nd
Edition Volume 2, paragraph 30.74, where it was explained that, before the
action could be commenced by service of the summons, the summons itself
required to be properly authenticated.
That gave it official status and enabled the action to be entered in the
Register of Summary Causes.
Authentication included giving the summons a number. Normally the summons was authenticated in
some appropriate manner by the sheriff clerk.
If the sheriff clerk refused to authenticate the summons for any reason,
the sheriff had to do so, if he thought it appropriate. These provisions had to be contrasted with
the making of a summary application, which was a quite different
procedure. That was regulated by the Act
of Sederunt (Summary Applications, Statutory Applications and Appeals etc.
Rules) 1999. Under rule 2.4(1) of
those rules, such applications were commenced by initial writ. The form of a summary cause summons was
regulated by rule 4.1(1) and Appendix 1, form 1 of the Summary
Cause Rules 2002.
[27] Having examined the foregoing statutory background, senior
counsel submitted that mere delivery to the sheriff clerk of a summary cause
summons amounted to nothing.
Authentication was what made the summons a summons in a live cause,
following the payment of the requisite fee.
Authentication was regulated by rule 4.4. If there existed a time limit within which
proceedings had to be commenced, those responsible had to make sure that
arrangements were in place whereby the summons could be authenticated
timeously. It was acknowledged that that
meant that action on the part of the Sheriff Court
staff was required. Authentication was a
safeguard provided for by section 32(1)(c) of the 1971 Act. If the foregoing submission was correct, the
consequence was that the appellants' application had been out of time because
authentication was effected only on 17 December
2004. This aspect of the
matter was dealt with in the respondents' cross-appeal. The cases cited on behalf of the appellants
did not assist them in this connection.
They were not concerned with the same form of procedure as was
applicable in the present case.
[28] Senior counsel submitted that there were no grounds for
interfering with the decisions of the sheriff and the sheriff principal. It would be wholly artificial to look at what
had happened on 16 December 2004
only, or to look at the stamping of the summons document on that date and
ignore what followed. It was necessary
to look at the totality of what had occurred.
What the situation amounted to was that a document had been brought to
the Court on 16 December 2004;
in the light of discussions taking place then, the document had been removed,
albeit after being stamped. At that
stage there was no authentication of the summons by the sheriff clerk or the
sheriff. There was no finding that any
arrangement had been made as regards the future of the proceedings. Finding in fact 24 recorded that at 4.00pm on 16 December 2004 matters were left on the basis that
"it was likely that someone would be coming in the next day". As appeared from finding in fact 26 the
summons was removed from the Court on 16 December
2004. All that added up to
the fact that no live application had been made on that date, in the sense of
an authenticated summons. The summons
was authenticated only on 17 December
2004, as appeared from finding in fact 27. The criticisms advanced on behalf of the
appellants of the approach of the sheriff principal were unjustified. The sheriff and the sheriff principal had
been entitled to conclude that the removal of the summons document from the
Court on 16 December 2004
showed that there existed an uncertainty concerning the making of the
application. If the sheriff clerk had
been asked at the close of business on 16 December
2004 what had happened in relation to this matter she might have
replied "I do not know if an application has been made; time will tell." Finally, it ought to be recognised that
two sheriffs had reached a conclusion adverse to the appellants'
position. They were experienced in the
practice and procedure of the Sheriff Court. That was a factor to be taken into
account. In all these circumstances the
appeal ought to be refused.
The decision
[29] The terms of section 1(1) of the 1949 Act are crucial to a
proper determination of the issue arising in this case. In order to achieve the benefit of
section 1(1) the tenant requires "... not later than the expiry of twenty-one
days after the service of the notice ... (to) apply to the sheriff for a renewal
of his tenancy." Section 1(7), of
course, provides that an application under section 1 is to be made by way
of a summary cause, within the meaning of the Sheriff Courts (Scotland)
Act 1971. Thus the event which must
occur within the specified period of time is the making of an application to
the sheriff. Having regard to the fact
that the period of 21 days prescribed by section 1(1) expired at midnight on 16 December 2004, the question therefore is whether
what was done on behalf of the appellants on that date amounted to an
application to the sheriff.
[30] The events which occurred on 16 December 2004 have already been
narrated and are set forth in findings in fact 15-18 made by the sheriff. It is acknowledged there that the summons
which was presented to the sheriff clerk's office complied with the minimum
requirements of the Summary Cause Rules as to the form of summons and the content
of its accompanying statement of claim.
That summons, upon presentation, was stamped with the stamp of the
sheriff clerk's office marked "lodged", associated with the date stamp 16 December 2004. The sequel to the presentation of the summons
is the subject of findings in fact 19-26, the substance of which has also been
narrated. It is clear from those
findings that the sequel to the presentation of the summons was discussion
between the sheriff clerk and Mr Donnelly and subsequently a person in the
office from which he had come concerning the appropriateness of the shortening
of the induciae normal in such a case
and the need for a sheriff to make a decision on that matter; also as to the
time at which such an application to a sheriff could be made. It appears to me from a consideration of
those particular findings in fact that it was plain that those acting for the
appellants desired that the summons should be processed in an appropriate
way. In my view, the only uncertainty
surrounding that matter was as to exactly when a qualified person would be
available to appear before a sheriff, with a view to making an application for
a shortening of the induciae in the
action.
[31] The events which occurred on 17 December 2004 are the subject of findings in
fact 27-30, the contents of which have also been narrated. The summons was duly authenticated in terms
of rule 4.4(2) of the Summary Cause Rules 2002 by the sheriff. Subsequently the summons was entered in the
Register of Summary Causes. For reasons
which are not clear, Mrs Bain changed the date on the pro forma stamp that had been affixed to the first page of the
summons from 16 to 17 December
2004. Further elements of
the summons, which were the responsibility of the sheriff clerk, were
completed. That was, of course, done on
the summons which had been presented on 16 December 2004.
[32] I would respectfully agree with what the sheriff principal said
in paragraph 52 of his judgment. He
there posed the question:
"What then is meant by 'apply' in the context of
section 1(1) of the 1949 Act?"
He answered that question thus:
"In my opinion, it means the presentation of a
procedurally valid summons accompanied by the appropriate fee to the sheriff
clerk together with a request, implicit
or explicit, that that summons should be processed. These are all matters within the sole control
of the applicant and do not depend in any way on anything done by the sheriff
clerk. This definition is therefore
entirely compatible with the dicta in the cases under the Company Directors
Disqualification Act 1986 to which I was referred by counsel for the
appellants. I have emphasised the latter
part of the definition because it is essential.
Unless such a request is made the presentation of the summons is
meaningless. Of course, in most cases
the presentation itself will amount to an implicit request to process the
summons, but in some cases something more will be required."
I would take issue with nothing said by the sheriff
principal in that paragraph. However, in
paragraph 53 of his judgment, the sheriff principal continues:
"Looking to that definition,
can it be said that what happened on 16 December in the present case
amounted to an application? In my
opinion, it can not. It is true that a summons
in the appropriate form was presented and that it was accompanied by a form
which could be used as the basis for payment of a fee. But the appellants' law agents failed to give
any direction to the sheriff clerk that the summons should be processed."
The sheriff principal then goes on to refer to the events
which I have already described. I find
myself unable to agree with the view taken by the sheriff principal in that
paragraph. In my opinion, the
presentation of a summons in proper form, together with the means of payment of
the appropriate fee, carried with it, by necessary implication, a request that
the summons should be processed in the ordinary way. To take any other view, it seems to me, would
be to imply that those responsible for the presentation of the summons were
simply wasting everyone's time. Looking
at the matter in a slightly different way, it appears to me that, the
presentation of a summons in proper form, together with the means of payment of
the appropriate fee, signifies that the
presenter intends that the natural consequences of that act should follow, that
is to say, the processing of the summons in the ordinary way. To the extent that the sheriff principal has
taken a different view, I consider that he has erred in law.
[33] It is
undoubtedly true that, as described in findings in fact 19-24, there was
uncertainty as to precisely how the summons would be processed following
presentation, having regard to the need for shortened induciae. However, I cannot
accept that that uncertainty detracts in any way from the significance of the
original presentation of the summons itself.
Nothing that occurred in that connection seems to me to undermine the
implied purpose of the presentation of the summons, that purpose being that it
should be processed in the ordinary way.
In these circumstances, the conclusion which I have reached is that the
actions which occurred on 16 December 2004 taken by those acting on behalf
of the appellants amounted to the making of an application to the sheriff in
terms of section 1(1) of the 1949 Act.
It therefore follows that the application was timeously made.
[34] I am
reinforced in the view that I have formed from my consideration of the facts
found in this case by what was said by Sheriff Principal Ireland in Secretary of State for Trade & Industry
v Josolyne. That case was, of course, concerned with
whether an application for disqualification of a person from acting as a
director had been timeously made. The
facts were that the application was time barred if the tempus inspiciendum was the date of service on the respondent, but
not if it was the date either of the lodging of the application, or of the
order for service. At page 49G-J
Sheriff Principal Ireland explained his approach, with which I would respectfully
agree. He said:
"One difficulty about reasoning
by analogy is that it tends to divert attention from the statutory provision
which the court is required to construe.
The action which is to be taken by the Secretary of State under
section 7(1)(a) of the Act is called an 'application', and that word, or
the related words 'apply' or 'applicant', is used, if my account is correct,
five times in the fasciculus of
sections headed 'Disqualification for Unfitness' and five times in
section 16, the sidenote of which is 'Application for disqualification
order'. In each case it is either
expressly stated (as in section 8(1) and section 16(2)) that the
application is an application to the court, or it is clear from the immediate
context that an application to the court is intended. What must be done within the two year
limit under section 7(2) is that the applicant must make an application to
the court. When, as happened in this
case, the solicitor for the Secretary of State presented the initial writ to the
sheriff clerk at Aberdeen then, according to the ordinary meaning of the words,
he made an application to the court, and was within the time limit. Neither the act of the sheriff in making the
order for service nor the service of the initial writ on the respondent can
properly be described as the making of the application to the court. These are events which are consequential on
an application which has already been made."
[35] It appears
to me that the approach taken by Sheriff Principal Ireland is one which ought
properly to be followed in this case, which is concerned with the time at which
the appellants applied to the sheriff. I
consider it proper to take that moment to be the moment when those acting for
the appellants presented, in this case, the summons, to the sheriff clerk. That was, of course, effected on 16 December 2004. In my view, the subsequent appearance before
the sheriff on 17 December 2004 when he shortened the induciae and authenticated the summons and the subsequent
registration of the summary cause in respect of which the summons had been
lodged were, as Sheriff Principal Ireland put it, "consequential on an
application which has already been made".
Having considered the other cases relied upon by the appellants, Secretary of State for Trade & Industry
v Normand and Secretary of State for Trade & Industry v Campleman, it is plain that in each case the court followed the
decision of Sheriff Principal Ireland in Secretary
of State for Trade & Industry v Josolyne.
[36] Emphasis
was placed by senior counsel for the respondents on the need for authentication
of the summons, in terms of rule 4.4 of the Summary Cause Rules 2002. While, no doubt, authentication is an
essential part of the sequence of procedure which is to be followed in connection
with the processing of a summary cause summons, that appears to me not to be
the point. As Sheriff Principal Ireland
pointed out in Secretary of State for
Trade & Industry v Josolyne
it is necessary to bear in mind the terms of the statutory provision which the
court must apply. In the present case
what has to be considered is the identification of the making of an
application. In my view the making of
the application must be anterior to its subsequent processing, including
authentication and registration.
[37] For all
these reasons I would allow this appeal and refuse the respondents'
cross-appeal. In my opinion, the case
should now be remitted to the sheriff to proceed as accords.
|
FIRST DIVISION, INNER HOUSE, COURT OF
SESSION
|
Lord President
Lord Osborne
Lord Kirkwood
|
[2006] CSIH 4
XA90/05
OPINION OF LORD KIRKWOOD
in
APPEAL
From the Sheriffdom
of Glasgow and Strathkelvin at Glasgow
in the cause
SUPERDRUG STORES
PLC
Pursuers and
Appellants;
against
NETWORK RAIL
INFRASTRUCTURE LTD
Defenders and
Respondents:
_______
|
|
|
Act: Keen, Q.C., Nicol,
Advocate; Fyfe Ireland
WS (Pursuers and Appellants)
Alt:
Peoples, Q.C.; MacRoberts,
Glasgow (Defenders and Respondents)
27 January 2006
[38] I am in full agreement with the Opinion of Lord Osborne but,
having regard to the very full submissions which were made to us, I wish to add
a few observations of my own.
[39] I agree with the sheriff principal's rejection of the
respondents' contention that it was the authentication of the summons which
determined the date of the application to the sheriff. Accordingly, the issue in this appeal is
whether the sheriff principal erred in determining, on the basis of the facts
found by the sheriff, that an application in terms of section 1(1) of the 1949
Act was not made on 16 December 2004,
and that the only application was made on 17 December and was therefore out of
time.
[40] It is common ground that the twenty-one day period provided for
in section 1(1) expired at midnight on
16 December 2004. On 16 December Mr. John Donnelly, an employee
of the appellants' law agents, Fyfe Ireland & Co. of Edinburgh, travelled
to Glasgow Sheriff Court. He there tendered to a summary cause clerk
the summons in the action which was properly raised as a summary cause in
conformity with section 1(7) of the Act, and had been completed in accordance
with the requirements of the Summary Cause Rules. He also tendered Form E200 which was a form
which could be used to pay court fees which were due, and it was not disputed
that it was a valid form for the purpose of paying the necessary court fee for
the application in question. The summary
cause clerk stamped the first page of the summons with the pro forma stamp of the sheriff clerk's office marked "Lodged" and the
date, namely 16 December 2004. In my opinion, the presentation to the
sheriff clerk depute of the completed summons and Form E200, both of which were
valid, taken together with the fact that the summons was then stamped "Sheriff
Clerk, Glasgow. LODGED 16 DEC 2004"
constituted a valid application to the sheriff.
I consider that in the circumstances the presentation of those documents
amounted to an implied request that the summons should be processed, and I do
not believe that at that stage any more was required. What happened thereafter was, in my opinion,
perfectly consistent with the application having been made to the sheriff on 16
December. After the documents had been presented,
the case was referred to Mrs. Bain to enable her to check the terms of the
summons. The issue, and the only issue,
which was raised by Mrs. Bain once she had checked the summons related to
whether or not the appellants wished to seek a shortened induciae. If they did, the
summons would have to be placed before a sheriff. That was not a matter which Mrs. Bain
would have been expected to raise unless a valid application had been
made. There was then a discussion as to
whether or not a solicitor could appear by 4 p.m.
in order to move the sheriff to grant a shortened induciae. In the event, Mrs.
Bain was told that the law agents would not be able to get someone to appear by
4 p.m., but that a solicitor would be
able to appear the following day and that "it was likely that someone would be
coming in the next day". These discussions
appeared to have proceeded on the basis that an application under section 1(1)
had been made. Mr. Donnelly took the
summons away and the next day a solicitor acting for the appellants did, in
fact, appear at Glasgow Sheriff Court
with the summons and went before a sheriff and the motion to shorten the induciae was granted. Mrs. Bain completed the section on the
court stamp relating to the fee paid, namely £39, by means of the Form E200,
and the sheriff found that the appellants' law agents had completed that form
so far as they were required to do and had dated it 16 December 2004. In the foregoing circumstances I am of the
opinion that the facts establish that an application in terms of section 1(1)
of the Act was made on 16 December
2004.
[41] The sheriff principal stated that, while a summons in the
appropriate form was presented and was accompanied by a form which could be
used as the basis for payment of the fee, the appellants' law agents had
"failed to give any direction to the sheriff clerk that the summons should be
processed". In my opinion, in the
particular circumstances of this case, no specific direction was required
because, as I have said, the presentation of the summons and the Form E200 had
constituted an implied request that the summons should be processed. The sheriff principal referred to the fact
that Mrs. Bain had been told that it was likely that someone would be coming in
the next day, and stated that that demonstrated a degree of uncertainty. In my opinion, however, any uncertainty was
limited to the only issue raised by Mrs. Bain, namely, the length of the induciae and, in particular, when a
solicitor could appear before a sheriff to move for a shortened induciae, and did not relate to the more
fundamental issue as to whether the summons should be processed at all. An appearance before the sheriff to seek a
shortened induciae would not, of
course, have been competent until the application under section 1(1) had been
made. However, once the application had
been made, it was not, in my view, necessary that the motion for a shortened induciae should be made on the day of
the application.
[42] The sheriff principal founded on the fact that Mr. Donnelly
took the summons away with him on 16 December, after it had been stamped as
"Lodged", as reinforcing the impression that no decision as to future procedure
had been taken. Even if no final
decision had been taken as to whether a shortened induciae was to be sought, that was a matter, in my view, which
related to the way in which the summons should be processed, not whether it
should be processed at all. Once a valid
application in terms of section 1(1) had been made, the fact that a decision as
to whether or not a shortened induciae
was to be sought was not made, and there was no appearance before a sheriff for
that purpose, until the next day, did not have the effect of invalidating the
application. If I am right in my
conclusion that the application was made when the properly completed summons
and the Form E200 were presented to the sheriff clerk depute on 16 December,
there has been no suggestion in this case that the fact that the summons was
then taken away by Mr. Donnelly (and not returned until the next day)
constituted a withdrawal of the application or that the application had thereby
lapsed.
[43] It has not been disputed that a valid Form E200 was presented
to the summary cause clerk on 16 December.
There was no finding by the sheriff as to what had happened to the form
after Mr. Donnelly left i.e. whether he took it with him or left it behind in
the Sheriff Court, although it is clear that the next day Mrs. Bain filled in
on the court stamp the details of the fee paid and the number of the Form
E200. However, in my opinion, the
important finding in fact was that the Form E200 was tendered at the Sheriff
Court on 16
December 2004, and there is no finding that Mr. Donnelly took
it away with him.
[44] The sheriff principal observed (in paragraph (56)) that the
fact that a date stamp was imprinted on the summons on 16 December was of no
significance, and was a nullity. I do
not agree. In my opinion, the official
date stamp vouched the fact, if it was necessary to do so, that the summons had
been presented at the Sheriff Court
on 16 December, and the stamp had been validly affixed on that date. The next day Mrs. Bain altered the date
on the stamp from "16" to "17". She made
that alteration in the course of authenticating the summons, and what she did
was consistent with her having taken the erroneous view that the date of
authentication was the date of the application.
Indeed, the sheriff, in paragraph [26] of the Note which was appended to
his Interlocutor of 27 January 2005,
stated that, in relation to her reason for changing the date, Mrs. Bain had
concentrated upon the act of authentication rather than the preceding act of
presentation of the summons and that she had considered that the date of the
stamp ought to be the date of authentication.
[45] In my opinion, the sheriff principal erred in law in holding,
on the basis of the facts found by the sheriff, that no application was made on
16 December and that the only application was made on 17 December and was
therefore out of time. For the foregoing
reasons I agree with Lord Osborne that the appeal should be allowed, the
cross-appeal should be refused and the case remitted to the sheriff to proceed
as accords.
