Scottish Court of Session Decisions

The Lord President said—This is a case attended with considerable nicety. The ground of action is that the defenders had served the pursuer with a summons within a short time after he had paid the debt. It appears that the defenders were not the active parties in the matter. They had put their claim into the hands of the Scottish Trade Protection Society for recovery. The defenders are, of course, responsible for the acts of the society, and they don't say they are not. It is not disputed that this debt had been paid to the society before the summons was issued. This is said to have been a mistake. We are told that the business of this society is conducted by means of various clerks, and that the clerk who received the payment had omitted to enter it and that thus the summons was issued notwithstanding of the payment. I have no idea that a society of this kind by subdividing their labour in this way can escape liability by saying that one of its hands does not know what its other hand is doing. It is also very clear that the pursuer has great ground to be dissatisfied in this case with the proceedings of the society, for it was negligence and carelessness on the part of the society which according to their own account led to the pursuer being summoned. I believe this society has existed for some time, and that its objects are good. Its name indicates a beneficial purpose. If well conducted the society may be of great public utility in enabling honest traders to recover claims from fraudulent debtors. But if it is carelessly and negligently conducted, if it uses its powers against persons who are not fraudulent debtors, it becomes mischievous and evil. I don't say that it is the habit of this society to act as they did here, but this case having occurred, I think it right that this caution should be given. In this case, however, I confess I feel considerable difficulty in granting any issue by reason of the circumstances that have occurred. I don't mean to say that a party who has been wrongfully sued for a debt which he has paid may not in some circumstances have a claim of damages. Some of the defences stated are quite extravagant. It is said that the pursuer is bound first to reduce the decree. That will never do. Then it is said that the pursuer should have applied for a rehearing. That is also out of the question. I give no opinion on the general question raised by the objection stated to the relevancy, but I think there were some things which the pursuer ought to have done in this case which he did not do. In the first place, he has not stated any good excuse for not going to the Court. He may have had a very good excuse, but he does not give it. His proper course was to have gone to the Court as a triumphant defender and presented his receipt, when he would have been assoilzied with costs. But further, the pursuer does not aver that the summons was issued in the knowledge that the debt was paid. It is one thing to issue a summons in forgetfulness, and another thing to do so knowing of the payment. Therefore on the whole though I think the conduct of the society not excusable, and that the defenders have stated some pleas which ought not to have been put on record, I think we ought to refuse an issue, dismiss the action, and find neither party entitled to expenses.