Law Reform (Miscellaneous Provisions) (Scotland) Act 1940

JurisdictionUK Non-devolved
Citation1940 c. 42


Law Reform (Miscellaneous Provisions) (Scotland) Act, 1940

(3 & 4 Geo. 6.) CHAPTER 42.

An Act to amend the law of Scotland relating to enforcement of decrees ad factum praestandum, to solatium and damages, to contribution among joint wrongdoers, and to prorogation of the jurisdiction of the Sheriff Court; to amend and extend the Intestate Husband's Estate (Scotland) Acts, 1911 and 1919; to make provision regarding the powers of the King's and Lord Treasurer's Remembrancer; to enable effect to be given to International Conventions affecting Scottish Courts; and to amend the law of Scotland relating to criminal procedure.

[17th July 1940]

B E it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

S-1 Amendment of the law as to enforcement of decrees ad factum praestandum.

1 Amendment of the law as to enforcement of decrees ad factum praestandum.

(1) No person shall be apprehended or imprisoned on account of his failure to comply with a decree ad factum praestandum except in accordance with the following provisions—

(i) On an application by the person in right of such a decree (hereinafter referred to as the applicant) to the court by which the decree was granted, the court may, if it is satisfied that the person against whom such decree was granted (hereinafter referred to as the respondent) is wilfully refusing to comply with the decree, grant warrant for his imprisonment for any period not exceeding six months;

(ii) Where the court is satisfied that a person undergoing imprisonment in pursuance of a warrant granted under this section has complied, or is no longer wilfully refusing to comply, with the decree, the court shall, notwithstanding any period specified in the warrant, order the immediate liberation of such person, and it shall be the duty of the applicant, as soon as he is satisfied that the decree has been complied with, forthwith to inform the clerk of the court of such compliance;

(iii) Imprisonment under a warrant granted under this subsection shall not operate to extinguish the obligation imposed by the decree on which the application proceeds;

(iv) The person on whose application a warrant for imprisonment has been granted under this subsection shall not be liable to aliment, or to contribute to the aliment of, the respondent while in prison.

(2) On any application in pursuance of the foregoing subsection, the court may, in lieu of granting warrant for imprisonment, recall the decree on which the application proceeds and make an order for the payment by the respondent to the applicant of a specified sum or make such other order as appears to the court to be just and equitable in the circumstances, including, in the case where the decree on which the application proceeds is a decree for delivery of corporeal moveables, a warrant to officers of court to search any premises in the occupation of the respondent or of such other person as may be named in the warrant, and to take possession of, and deliver to the applicant, any such moveables which may be found in such premises.

(3) Any warrant granted under the last foregoing subsection shall be deemed to include authority to open shut and lockfast places for the purpose of carrying the warrant into lawful execution.

(4) This section shall not apply as regards a decree granted by a court held in pursuance of the Small Debt (Scotland) Act, 1837 , as amended by any subsequent enactment.

S-2 Amendment of the law as to damages or solatium for death of relative.

2 Amendment of the law as to damages or solatium for death of relative.

(1) In any question as to the right to recover damages or solatium in respect of the death of a person caused by the fault of another person, an adopted child shall be deemed,

(a ) if adopted by two spouses jointly, to be the legitimate child of those spouses; and

(b ) if adopted by one person, to be the legitimate child of that person, and of a spouse who died immediately after the adoption,

and, in either case, not to be the child of any other person.

(2) An illegitimate person shall have the like right to recover damages or solatium in respect of the death of either of his parents as if he were legitimate.

(3) In this section the expression ‘adopted child’ means a person, whether or not still under the age of twenty-one, who has been adopted, whether before or after the commencement of this Act, in pursuance of an adoption order made under the Adoption of Children (Scotland) Act, 1930 , or the Adoption of Children Act, 1926 , or the Adoption of Children Act (Northern Ireland) 1929, and for the purpose of any proceedings in relation to a claim for damages or solatium a certified copy of any entry in an Adopted Children Register which under subsection (5) of section eleven of the Adoption of Children Act, 1926, or under subsection (5) of section eleven of the Adoption of Children Act (Northern Ireland), 1929, would, in England or Northern Ireland, as the case may be, be receivable as evidence of any fact, shall be receivable as evidence of that fact in Scotland.

(4) Nothing in this section shall apply to a claim of damages or solatium in respect of the death of a person which occurred before the commencement of this Act.

S-3 Contribution among joint wrongdoers.

3 Contribution among joint wrongdoers.

(1) Where in any action of damages in respect of loss or damage arising from any wrongful acts or negligent acts or omissions two or more persons are, in pursuance of the verdict of a jury or the judgment of a court found jointly and severally liable in damages or expenses, they shall be liable inter se to contribute to such damages or expenses in such proportions as the jury or the court, as the case may be, may deem just: Provided that nothing in this subsection shall affect the right of the person to whom such damages or expenses have been awarded to obtain a joint and several decree therefor against the persons so found liable.

(2) Where any person has paid any damages or expenses in which he has been found liable in any such action as aforesaid, he shall be entitled to recover from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded, such contribution, if any, as the court may deem just.

(3) Nothing in this section shall—

(a ) apply to any action in respect of loss or damage suffered before the commencement of this Act; or

(b ) affect any contractual or other right of relief or indemnity or render enforceable any agreement for indemnity which could not have been enforced if this section had not been enacted.

S-4 Agreements to prorogate the jurisdiction of the sheriff court.

4 Agreements to prorogate the jurisdiction of the sheriff court.

(1) Any provision or agreement in or in relation to a contract to which this section applies, whereby any party to such contract prorogates, or agrees to submit to, the jurisdiction of a particular sheriff court, shall be void.

(2) This section applies to—

(a ) any contract for the sale of an article whether the purchase price is payable in one sum or in instalments and whether or not the contract contains a condition that the...

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