On appeal the pursuer maintained that the small-debt decree was directed against him in his representative capacity only. The defender, on the other hand, contended (1) that a small-debt decree was necessarily directed against the pursuer personally, and (2) that in this case he was not sued and decerned against “as” trustee. The parties were at issue as to whether the pursuer had executry funds in his hands.
The Court recalled the interlocutors appealed against in hoc statu , and remitted to the Sheriff to allow the parties a proof of their averments before answer, the proof to be directed to the state of the executry funds (1) when the claim was first made; (2) when the small-debt action was raised, and (3) when the decree therein was pronounced.
The sum sued for was the amount of an account for professional services rendered to the deceased Mrs Ward,
The decree pronounced upon this summons was as follows:—“At Edinburgh, the twenty-sixth day of October One thousand eight hundred and ninety-eight years, the Sheriff of the Lothians and Peebles finds the within designed James M'Mahon as libelled, defender, liable to the pursuer in the sum of Three pounds twelve shillings, with three shillings and one penny of expenses, and decerns and ordains instant execution by arrestment, and also execution to pass hereon by poinding and sale, and imprisonment if the same be competent after a charge of ten free days.”
Upon 14th November 1898 “James M'Mahon, defender above designed,” was charged to implement this decree.
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