Scottish Court of Session Decisions

This was an action of damages at the instance of Robert Aiton Taylor, residing at No. 3 Mayville Gardens. Trinity, against Alexander C. Rutherford, manager and secretary of the Glasgow and West of Scotland Guardian Society, No. 145 Queen Street, Glasgow, in the following circumstances: —In 1884 the pursuer, who was then assistant secretary to the Caledonian Insurance Company at their Glasgow office, was tenant of a house No. 91 Claremont Street, Glasgow, belonging to M'Dougall & Sons, glass merchants there, for three years from Whitsunday 1883. On 8th April 1884 he left Glasgow for Liverpool, having got an appointment there.

On 21st May 1884 M‘Dougall & Sons left instructions at the defender's office to have the pursuer's effects sequestrated for the half-year's rent past due. On 24th May the rent and expenses of sequestration were paid.

On or about the same day, the 24th, instructions were left at the defender's office by M'Dougall & Sons to take out a summons against the pursuer for the recovery of a debt of £30, 15s. due to them for goods supplied, which was accordingly done.

The pursuer averred—“(Cond. 9) At the time when he received instructions to recover the said rent and trade debt, the defender was informed by his clients, and was himself well aware, that the pursuer had left his Glasgow house animo non revertendi, and that his domicile was in England, and he knew the pursuer's address, and that he was joint secretary in Liverpool of the Caledonian Insurance Company, of which company the defender was an agent, but notwithstanding such knowledge he caused the summons to be served at the pursuer's dwellinging-house after he had left it, and after his furniture and effects were out of it, and another tenant was in possession. He also caused the sheriff officer employed by him to serve the summons, who is one of his employees, and has no separate business of his own, to watch the removal of the pursuer's furniture during the said 24th May 1884 until it had been transferred to the Caledonian Railway Station in Glasgow, addressed to the pursuer for transit to him at Liverpool, and there to arrest the said furniture on the dependence of the action, and on 2nd June 1884 he moved for and obtained decree in absence against the pursuer for the amount of said account, and immediately thereafter arrested the furniture above referred to in the hands of the Caledonian Railway Company on said decree. The pursuer knew nothing of all this procedure, nor that a decree in absence was being obtained against him till on or about the 4th of June, when he received a telegram from his brother informing him that his name was published as a defaulting debtor in Stubbs & Company's paper of that same date, and in other papers of a similar nature commonly known as the ‘Black Lists.’ In particular, publication of the pursuer's name was made by the defender in one of those lists called The Commercial Compendium, purporting to issue from the said Glasgow Guardian Society. The said Compendium is compiled, printed, and published, or at all events is issued and circulated, by or on behalf of the defender for his own behoof and profit, and he maliciously and wrongfully, and in the full knowledge that said decree in absence against the pursuer had been wrongously and illegally obtained, furnished the information whereby the said decree in absence was published in said lists.” “(Cond. 10) As soon as the pursuer became aware of the defender's proceedings he instructed the decree in absence to be sisted, and consigned the amount of debt and costs in the hands of the Clerk of Court at Glasgow, and on the 16th July 1884 the Sheriff-Substitute issued an interlocutor, finding, inter alia, and for the reasons therein stated, that the pursuer had not been duly cited to the action on which the said decree in absence was obtained, and that he had no notice of the proceedings, although the pursuers in said action, Messrs M'Dougall & Sons, knew his address and could have given him such notice. Accordingly the said Sheriff-Substitute sustained the sist, recalled the decree, dismissed the action, and found the said M'Dougall & Sons liable to the pursuer in expenses.”

The defender explained “that the ground on which the Sheriff-Substitute recalled the decree in absence was that the pursuer had been cited by leaving the summons at No. 91 Claremont Street, Glasgow, instead of edictally.”,

The pursuer further averred—“The defender … carries on business at No. 145 Queen Street, Glasgow, and styles himself ‘manager and secretary’ of a concern which he calls and advertises as ‘the Glasgow and West of Scotland Guardian Society for the Protection of Trade.’ It is believed and averred that there is no such society in existence, but that this title is merely a name under which the defender carries on, solely for his own behoof and profit, the business of an ordinary debt collector. The defender is not a qualified legal practioner, and is neither entitled nor competent to undertake the duties of a law agent.”

The defender's answer was — “Admitted that the defender is manager and secretary of the Glasgow Guardian Society, and resides and carries on business at the addresses stated. Admitted that the defender is not a law agent, and explained that he does not represent himself to be so, and that the proceedings in question were all carried on by a duly qualified law agent acting on the instructions communicated by the defender's manager. Quoad ultra denied.”

The pursuer further averred—“The said

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decree was illegally, wrongfully, and unwarrantably obtained by the defender. The application therefor, and the publication thereof were made, and the whole other proceedings complained of were taken in mala fide, recklessly, oppressively, maliciously, and without any just or necessary cause by the defender for his own ends, and ultimately for the purpose of gratifying the malice he entertained towards the pursuer by ruining his credit and prospects in life, and the defender is liable to the pursuer for the loss, injury, and damage resulting to him therefrom, and for solatium in respect thereof.”

The pursuer also averred—“The defender on or about the 12th of December 1884 reinstituted proceedings in name of the said M'Dougall & Sons for recovery of said account from the pursuer by issuing from the Debts Recovery Court at Ayr a summons for the amount thereof. Decree was obtained thereon on the 18th December, and a petition for cessio was immediately threatened. The cessio proceedings were prevented by the pursuer paying the amount of the debt and costs.”

In March 1885 Taylor had raised an action of damages against M'Dougall & Sons in the Court of Session, which was dismissed with expenses.

On 22nd September M'Dougall & Sons settled with Taylor his claim of damages for the alleged illegal proceedings and arrestments, and received from him a receipt in the following terms—“In consideration of Messrs M'Dougall & Sons having agreed to abandon their claim for expenses in my recent action in the Court of Session against them, I hereby discharge them of all claims I may have against them for alleged wrongful citation and arrestment in or about May 1884 under a summons for payment of their account, amounting to £30, 15s. 0 1 2d., against me, and I have no other claim whatever against them up to this date.”

The pursuer pleaded—“(1) The defender while in knowledge of the pursuer's permanent removal from Glasgow, and of his address in Liverpool, having raised and served the said action, and taken the decree condescended on without having given to the pursuer any citation or intimation of the dependence thereof, the same, and the subsequent proceedings therein, were illegal, nimious, oppressive, and wrongful. (2) The said proceedings having been taken by the defender maliciously and without probable cause to the loss, injury, and damage of the pursuer, the pursuer is entitled to reparation as concluded for, with expenses. (3) The defender having published the said decree in absence against the pursuer, or having issued and circulated it in the full knowledge that the same had been wrongously and illegally obtained, to the great loss, injury, and damage of the pursuer, the pursuer is entitled to reparation therefor, as concluded for. (4) The said publication having been made maliciously and without probable cause by the defender to the great hurt and prejudice of the pursuer, he is entitled to reparation as concluded for.”

The defender pleaded—“(1) No relevant case. (2) The defender not having exceeded his instructions, he is entitled to absolvitor. (3) The pursuer having discharged Messrs M'Dougall &Sons, upon whose instructions the defender acted in the proceedings mentioned, of all claims in respect of said proceedings, is barred from maintaining the present action against the defender.”

On 25 th February 1888 the Lord Ordinary ( M'Laren) approved of the following issues for the trial of the cause and disallowed the counter issue:—“(1) Whether on or about 24th May 1884 the defender maliciously, and without probable cause, raised, or caused to be raised, in the Sheriff Court of Lanarkshire at Glasgow, a summons under the Debts Recovery (Scotland) Act 1867 against the pursuer at the instance of Messrs M'Dougall & Sons, china merchants, Glasgow, for the sum of £30, 15s. 0 1 2d. sterling, and arrested, or caused to be arrested on the dependence of the said summons, in the hands of the Caledonian Railway Company, certain articles or parts of articles of furniture belonging to the pursuer, and lying at the station in Glasgow of the said railway company, addressed to the pursuer for transit to him at Liverpool to the loss, injury, and damage of the pursuer? (2) Whether on or about 2nd June 1884 the defender, in execution of a decree obtained by him in absence in the said Sheriff Court on or about said date, at the instance of the said Messrs M'Dougall & Sons against the pursuer for the said sum of £30, 15s. 0 1 2d., wrongfully arrested certain articles or parts of articles of furniture belonging to the pursuer, or caused the same to be arrested, to the loss, injury, and damage of the pursuer? (3) Whether on or about 5th June 1884 the defender wrongfully, and without probable cause, published the pursuer's name, or caused it to be published, in a publication called the Commercial Compendium issued by or for him in the form contained in the schedule annexed hereto, meaning thereby to represent the pursuer to be a defaulting debtor, against whom a decree in absence in the Sheriff Court of Lanarkshire at Glasgow, for payment of the sum of £30, 15s. 0 1 2d., with expenses of process, to Messrs M‘DougalI & Sons, china merchants, Glasgow, had been obtained to the loss, injury, and damage of the pursuer? Damages laid at £3000 sterling.”

SCHEDULE.

Decreets in Absence, &c.

County	Amount	Date	Defenders	Pursuers
Lanark	£ s. d. 30 15 0£	June 2	R. Alton Taylor, 91 Claremont tit., Glasgow.	M'Dougall &	Sons, 71 & 73 Buchanan St., Glasgow.

Issue proposed by the defender—“Whether the statements in the said the said Schedule are true?”

The defender defender reclaimed, and argued that the issuable matter on record. As to the first issue, there was no relevant averment of malice. The summons disclosed the fact that the debt existed, and it was not disputed that it was subsequently recovered in another action. Besides, the discharge granted by the pursuer to M'Dougall & Sons covered the present action—Ersk. iii. 1, 15; Scott v. Turnbull, July 18, 1884, 11 R. 1131. As to whether the arrestments used were illegal— Wolthekker v. The Northern Agricultural Company, December 20, 1862, 1 Macph. 211; Taylor v M'Dougall & Sons, July 15, 1885, 12 R. 1304. With regard to

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the second issue, if allowed at all, the wrong complained of should be specified and pnt in issue; it should be stated what the defender really did — Oibb v. Edinburgh Brewery Company, June 19, 1873, 11 Macph. 705. As to the third issue, all that the defender did was to print what was open to all in the records of the Sheriff Court; the publishing was the natural outcome of the decree in absence having been obtained. It was not the act of the defender at all. Besides, this incident was covered by the discharge granted to M'Dougall & Sons-Stevenson v. Pontifex & Wood, December 7,1887, 15 E. 125. Further, the debt with regard to which these proceedings were taken was justly due, and this was the second action raised by the pursuer with reference to these proceedings. It was neither an action directed against the principal, nor yet against the law agent, but against one who was an inter-mediary between the two. There was no authority for such an action— Smith v. Taylor, December 8, 1882, 10 E. 291. It was impossible that any action could lie against the defender in so far as he acted upon the instructions of M'Dougall & Sons.

Replied for the pursuer—The agreement with M'Dougall & Sons was no bar to the present action, and the pursuer could competently proceed against both the agent and the client; or he might forgive the one and sue the other. This was a case of joint delinquency, and it was impossible for the defender to say that he was in any way prejudiced because the claim of the pursuer against M'Dougall & Sons had been discharged— Inglis v. M'Intyre, July 3, 1861, 23 D. 1210; North British Railway Company v. Leadburn Railway Company, January 12, 1865, 3 Macph. 340. This was not a case in which the pursuer required to prove malice or vant of probable cause, because the proceedings were null ab initio— Wilson v. Mackie, October 22, 1875, 3 E. 18; Wightman v. Wilson, March 9, 1858, 20 D. 779; Meikle v. Sneddon, March 5, 1862, 24 D. 720. Looking to the facts as to the pursuer's relation to the house at the date of the diligence, the Sheriff had no jurisdiction, though the Supreme Court had, because he was tenant of heritage in Scotland — M.'Bey v. Knight, November 22, 1879, 7 E. 255; Thomson v. Whitehead, January 25, 1862, 24 D. 331. Under the Sheriff Court Act 1876, sec. 9, which related to citation, as the pursuer's address was known to the defender a copy of the summons should have been forwarded to him; this was not done, and therefore all that followed was null, for if the citation was bad it vitiated all arrestments on the dependence; here both the arrestments on the dependence and also the arrestments on the decree were bad, and so the case of Wolthekker did not apply.

At advising—