Scottish Court of Session Decisions

This was an action of damages by James MacRobbie, accountant, Glasgow, against the trustees of the late Peter M'Leilan, iron merchant there, and Forbes, Bryson, & Carrick, writers in Glasgow, their law-agents, for the wrongous use of diligence.

MacRobbie was trustee under a trust-deed granted by the late William Barrie, manufacturer in Glasgow, for behoof of his creditors.

Barrie, who was possessed of heritable subjects in Glasgow, had borrowed from Peter M'Lellan's trustees a sum of £1700, in security for which he granted a bond and disposition in security. This sum became repayable at Martinmas 1873, and various negotiations took place between the parties, resulting in 1890 in a petition of maills and duties being raised in the Sheriff Court at Glasgow by M'Lellan's trustees against MacRobbie as trustee, and also against the tenants and occupants of the subjects.

The prayer of the petition concluded thus:—“And in the event of any of the defenders appearing and offering opposition hereto, to find such appearing and opposing defenders liable jointly and severally in expenses.”

The inducice of the petition expired on the 24th February 1890, and on that day MacRobbie posted to the Sheriff-Clerk an intimation in the following terms:—Notice of appearance for James MacRobbie, accountant, Glasgow, in the action of maills and duties at the instance of the trustees of the late Peter M'Lellan. (Signed) James Macrobbie.” This notice was not received by the Sheriff-Clerk until the 25th, after the inducice had expired.

When the case was called on the following day the attention of the procurator for M'Lellan's trustees was called to MacRobbie's intimation, and he thereupon wrote upon the interlocutor-sheet the following:—“ Glasgow, 24 th February 1890.—I consent to the above being received.—(Signed) (for Samuel Carrick, pursuer's agent), W m. Gemmel, Procurator.”

On the 27th day of February 1890 the Sheriff-Substitute ( Murray) pronounced the following interlocutor:—“On the pursuers' motion, and of consent, Allows the notice of appearance for James MacRobbie to be received, and in respect that he has failed to lodge defences, and the other defenders to lodge a notice of appearance, holds them all as confessed: Decerns in the maills and duties as craved: Finds the said James MacRobbie liable in expenses, allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report.”

On the 7th of March 1890 the Sheriff-Substitute pronounced as follows:—“Approves of the Auditor's report on the pursuers' account of expenses, and decerns against the defender James MacRobbie for payment to the pursuers of the sum of fourteen pounds fourteen shillings and one penny of taxed expenses,”

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This decree was extracted, and on 26th May 1890 MacRobbie was charged thereon. On the same date a notice was sent to MacRobbie that failing payment of the sums mentioned in the charge, a petition for cessio would be presented in the Sheriff Court at Glasgow, at the instance of M'Lellan's trustees.

The pursuer averred that he had no interest or intention to oppose the prayer of the petition of maills and duties, and that he only desired to be informed of what was being done in the action; that at the diet at which the defenders consented to his intimation of appearance being received they moved the Court, in his absence, and without any notice to him, to find him liable in expenses as defending the action. The interlocutor of the Sherift-Substitute of 27th February 1890 was ultra vires, and all that followed upon it was illegal and irregular; no intimation of any of the proceedings was ever made to him, and the diligence was oppressive. In consequence he had suffered in his credit and professional reputation, and the proceedings taken against him were done recklessly, maliciously, and without probable cause.

The defenders substantially admitted the pursuer's averments, and the defender Carrick accepted on behalf of himself and the other defenders all responsibility for what had occurred. They denied that the pursuer had suffered any loss or damage from any informality that existed in the procedure.

The Lord Ordinary ( Kincairney) adjusted the following issue for the trial of the cause:—“Whether, in the Sheriff Court at Glasgow, the defenders Forbes, Bryson, & Carrick, and Samuel M Carrick, on or about 7th day of March 1890, wrongfully, maliciously, and without probable cause, obtained decree against James MacRobbie for payment of £14,14s.1d., and on or about 26th day of May 1890 they charged him or caused him to be charged on said decree, and on or about 26th day of May 1890 served notice of cessio upon him, or caused such notice to be served, all to his loss, injury, and damage? Damages laid at £250.”

The pursuer reclaimed, and moved their Lordships of the First Division to vary the issue by omitting the words, “maliciously, and without probable cause.”

Argued for the reclaimer—The whole procedure had been so irregular that the pursuer was entitled to an issue, not only against the law-agent, but also against the trustees. There had been a deliberate manipulation of the forms of process to enable the defenders to bring the pursuer within the prayer of the petition. This was more than a mere irregularity—it was a trick—and the diligence which had been used on the decree so obtained was damaging to the professional position of the pursuer. It was not necessary to a vermalice, nor should the pursuer be required to insert it in the issue— Bell v. Gunn, June 21, 1859, 21 D. 1008; Ormiston v. Brown, February 24, 1866, 4 Macph. 488.

Argued for respondents—The decree was pronounced by a Judge in a competent Court, and in such a case it was essential that malice and want of probable cause should be inserted in the issue. If the decree was good in the present case, and it was not seriously challenged, then all that followed upon it was quite regular. The pursuer might have entered appearance for his own private purposes and without meaning seriously to defend the action, but the defenders could not know this and were bound to take decree against him— Davis v. Hepburn, May 31, 1867, 5 Macph. 804.

At advising—