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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jack v. North British Railway Co. [1885] ScotLR 22_677 (2 June 1885) URL: http://www.bailii.org/scot/cases/ScotCS/1885/22SLR0677.html Cite as: [1885] ScotLR 22_677, [1885] SLR 22_677 |
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Page: 677↓
[Sheriff of Lanarkshire.
Held that under the provisions of the 46th section of the Sheriff Courts (Scotland) Act 1876, a railway company is subject to the jurisdiction of the Sheriff of a county in which they have one of their principal places of business, though not the county in which they have their domicile, or in which the cause of action has arisen.
This was an action at the instance of Mrs Mary Gray Wilson or Jack, 13 Royal Buildings, Uddingston, widow of the deceased John Jack, commercial traveller, Drymen, against the North British Railway Company, concluding for damages for the death of her husband who had been killed at the defenders' station at Balloch through the alleged fault of the defenders.
Page: 678↓
The action was raised in the Sheriff Court of Lanarkshire at Glasgow, where the defenders have an important but not their chief office. The station at Balloch is in the county of Dumbarton.
The defenders pleaded no jurisdiction.
The Sheriff Substitute ( Erskine Murray) repelled the plea of no jurisdiction, and allowed a proof.
The pursuer appealed to the Court of Session under the 40th section of the Judicature Act for jury trial.
Before the case was argued the appellant made the following addition to the condescendence—“The North British Railway Company is incorporated by Act of Parliament, and carries on business, and has a place of business, at No. 14 West George Street, Glasgow. The said place of business is one of the defenders' principal offices, and they were duly cited thereat.” She also added the following plea-in-law—“(3) The defenders' plea of no jurisdiction ought to be repelled, in respect of the provisions of sections 3 and 46 of the Sheriff Court Act 1876 (39 and 40 Vict. cap. 70).”
The appellant admitted that the action would have been incompetent for want of jurisdiction at common law. She argued that it was competent under the 46th section of the Sheriff Court (Scotland) Act 1876, (quoted in the opinion of the Lord President, infra). There was nothing in the terms of the section to make it inapplicable to a railway company. Personal citation on the secretary of a railway company is good— Stewart v. Scottish Midland Junction Railway Company, March 3, 1825, 14 D. 594. Although it was conceded that the domicile of the defenders was not in Glasgow, yet the defenders had there one of their principal places of business.
The respondents argued—The section founded on could not have been intended to affect the common law. It was admitted that at common law there was jurisdiction either in the county in which was the locus delicti, or where the company had its domicile, but neither of these was the county of Lanark, and the result of the appellant's argument would be to give jurisdiction in respect of every place of business along the whole line. From the terms of the section it was evident that it was not intended to apply to an incorporation like a railway company. Such an incorporation could not be personally cited.
Authorities— Aberdeen Railway Company v. Ferrier, January 28, 1854, 16 D. 422; Edward v. Inverness and Aberdeen Junction Railway Company, 4 Irv. 185.
At advising—
The question has been narrowed by the concession of the appellant to a consideration of the 46th section of The Sheriff Courts (Scotland) Act 1876, which she maintains confers jurisdiction on the Sheriff.
Now, keeping in view that under the statute (sec. 3) the term “person” includes not only individual, but also company, corporation, and firm, the provision of section 46 is this—“A person carrying on a trade or business, and having a place of business within a county, shall be subject to the jurisdiction of the Sheriff thereof in any action, notwithstanding that he has his domicile in another county, provided he shall [be cited to appear in such action either personally or at his place of business.” I understand it to be conceded that the railway company has a place of business within Lanarkshire, and that it is one of their principal places where they carry on business. It appears to me very difficult to say that the words of the statute do not precisely apply to such a case as we have here. The railway company are carrying on business, and have a place of business in Lanarkshire, and all that is necessary in order to bring the company before the Sheriff is that they shall be cited personally or at their place of business.
It has been contended by the company that if the 46th section receives this full and extensive effect an action might be brought against them in almost every county in Scotland, though the cause of action has arisen in another county. But I think that when the statute speaks of a corporation having its place of business in a county, that provision must be read in a reasonable way, and in order to ascertain the purpose of the statute we may look to other statutes dealing with the subject. We have various statutes regulating the way in which railway companies must be cited; for example, section 137 of the Companies Clauses (Scotland) Act 1845 provides that “Any summons or notice, or any writ or other proceeding at law or in equity, requiring to be served upon the company, may be served by the same being left at, or transmitted through the post directed to, the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there be no secretary, then by being given to any one director of the company.” Again, the Railway Clauses (Scotland) Act 1845, sec. 130, provides that “Any summons or order, or any writ or other proceeding at law requiring to be served upon the company, may be served by the same being left at, or transmitted through the post directed to, the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there shall be no secretary, then by being given to any one director of the company.” It appears to me that these provisions throw a good deal of light on the question with which we are here concerned. When it is affirmed that a company like this shall be subject to the jurisdiction of the Sheriff of a county if they have a place of business in the county, I do not think that can be read as meaning that they shall be subject to the jurisdiction if they have a roadside station in the county, or even have a station in a larger sense. Therefore I think that in order to there being jurisdiction because the defenders have a station in the county, the station must be one in which an important part of the business of the company
Page: 679↓
As for the contention that by the term “person” the framers of section 46 had in contemplation merely persons who are capable of being personally served, I do not think that the section is to be so limited. Therefore, in my view, either personal service or service at the place of business would be sufficient compliance with the terms of the section. But even if there were more in the argument, I think it admits of another answer, for I do not doubt that an incorporated company is capable of being personally cited. That was decided in the case of Stewart v. Scottish Midland Junction Railway Company, 14 D. 594. In that case the only warrant was to cite the defenders personally or at their dwelling-house, and the citation was by delivery to the secretary personally, which is just the mode recognised by the Companies Clauses Act and the Railway Clauses Act, and the citation was held to be good. Therefore I come to the conclusion that if this company has a principal place of business in Lanarkshire then they can be personally served in Lanarkshire.
Any little inconvenience which might arise is sufficiently met, I think, by the last part of section 46, which allows the Sheriff, “upon sufficient cause shown, to remit any such action to the Court of the defenders' domicile in another sheriffdom.”
It is conceded that the defenders have a principal place of business in Lanarkshire, and I have no doubt that in such a case the 46th section of the statute clearly applies. Possibly we may hereafter have to decide a case as to a place of business of less importance, and with regard to that I should wish to reserve my opinion, for one can see that there is room for maintaining that the section applies to stations of less importance where the company is carrying on business.
But there can be no doubt that it was the intention of the Legislature that the statute should apply to this case. I do not think there is any difficulty with regard to the provision that the defender shall be cited personally. That just means that if you are dealing with a person, then the citation is to be personal, and if you are dealing with a company, then the citation is to be at the company's place of business, or personally on their secretary, or one of the directors. No doubt “personal” citation is more directly applicable to persons, but it does not follow that companies are to be struck out of the section, because when one turns to the interpretation it is seen that the term “person” includes “company, corporation, and firm.”
The Court repelled the objectiou to the jurisdiction of the Sheriff, and ordered issues.
Counsel for Pursuer (Appellant)— Ure. Agents— Dove & Lockhart, S. S. C.
Counsel for Defenders (Respondents)—Lord Advocate Balfour, Q. C.— Graham Murray. Agents— Millar, Robson, & Innes, S.S.C.
