Scottish Court of Session Decisions

Lord Ormidale—I think it extremely desirable in the matter of issues that we should adhere to the established form, for this obvious reason, that by so doing we prevent much litigation for the future. It appears to me that this case is ruled by the principles laid down in Wolthekker v. Northern Agricultural Co. ( 1 Macph. 211), and in Kennedy v. The Police Commissioners of Fort-William ( 15 Scot. Law Rep. 191). Landlords’ sequestrations are expressely referred to by Lord President Inglis in the former case as falling under the category of cases in which the applicant must be answerable for the truth of the statement on which he obtains his warrant. I think it unnecessary and undesirable to say more than that it is a settled rule that in actions of damages for wrongful sequestration it is not necessary for the pursuer to establish malice and want of probable cause.

Lord Gifford—I am of the same opinion. In the case of arrestment on the dependence of an action it is quite fixed that malice and want of probable cause must be inserted in the issue; and there is certainly great force in the argument submitted to us, that the same rule should be applied to the present case, where the warrant of sequestration seems to be issued with as little consideration and as much as a matter of course as a warrant of arrestment on the dependence. But I am not disposed to extend the rule laid down in Wolthekker and similar cases beyond what has been actually decided.

I think that the present case will be perfectly well tried with the word “wrongfully” only in the issue.

Lord Young—(who sat in this Division in the absence of the Lord Justice-Clerk)—I concur. I think that the case will be very well tried with the word “wrongfully, ” which I prefer to “wrongously, ” as being more correct and more easily pronounced. I do not regard “oppressively” as a convenient term, for although it is employed in some statutes, it is a very difficult word to define. The same observation as to difficulty of definition applies also to “maliciously, ” which is moreover ambiguous and misleading. We borrowed the word from the English law, and in England the attempt is now being made, by a bill introduced by the Government into Parliament, to eliminate the term from criminal procedure on account of this very ambiguity. A jury will always fancy that the idea of some spite is contained in the word, and accordingly every explanation has to be given in order to make it clear to their minds that the legal meaning of the word is not the same as the popular one.

“Wrongfully, ” the old Saxon word, I prefer. Its meaning is “off the straight, ” wrong, or “wrung, ” which I believe to be the etymology. Whether the one word or the other be used here will be all the same as regards the verdict of the jury, and I think “wrongfully” will entirely try the questions raised.