Scottish Court of Session Decisions

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The Citation Amendment (Scotland) Act 1882 (45 and 46 Vict. cap. 77), sec. 4 (5), enacts—[ Quoted in rubric.]

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 6 ( b), as amended by the Sheriff Courts (Scotland) Act 1913, sec. 3, First Schedule, enacts—[ Quoted in rubric.]

William Robertson Bruce, wholesale fish merchant and fish curer, Aberdeen, pursuer, brought an action against the British Motor Trading Corporation, Limited, Glasgow, defenders, for reduction of a decree in absence, dated 7th and extracted 23rd June 1922, which the defenders obtained against him in the Sheriff Court at Glasgow.

The following narrative is taken from the opinion of the Lord Justice-Clerk ( infra):—“The pursuer in this case seeks to reduce a decree in absence which the defenders obtained against him in the Sheriff Court at Glasgow. The pleas upon which the pursuer bases his claim are (1) that the citation which preceded the decree was invalid, and (2) that the Court which granted the decree had no jurisdiction over him. The second of these pleas did not appear in the pursuer's original summons, but was added by way of amendment in the course of the evidence led before the Lord Ordinary. The defenders in reply maintain that the citation of the pursuer was good, and that the jurisdiction of the Court which pronounced the decree was unchallengeable. They further contend that the pursuer is personally barred from challenging the decree, and that he has no title or interest to sue the present action. The last plea was not included in the original defences to the action, but was added by the defenders in the course of the debate upon the reclaiming note before this Court. The circumstances under which the decree was obtained by the defenders against the pursuer are as follow:—The pursuer is a wholesale fish merchant and fish curer, whose principal place of business is at Albert Quay, Aberdeen. He also had a branch place of business at 91 King Street, Glasgow. On 17th April 1922 the pursuer sold his business and plant in Glasgow to Messrs Thomas Craig & Company, fish merchants, Dunbar, and they obtained possession of the subjects sold on 24th April 1922. The pursuer, however, remained liable under the lease with his landlords for the rent of the premises up to Whitsunday 1922, and he left upon the door of his office in Glasgow a plate with his name upon it. In October 1921 the pursuer's car broke down while passing through Stirling, and certain repairs were thereby rendered necessary and certain new parts had to be obtained. The repairs were executed and the new parts were obtained by the defenders, who rendered an account arising out of these services to the pursuer. He disputed the amount of the account, and in particular he repudiated liability for the largestitem which it contained. Certain correspondence regarding the account ensued between the pursuer on the one hand and the defenders’ law agents in Glasgow on the other hand. No agreement having been reached regarding the matters in dispute, the defenders determined to sue the pursuer for the amount of their account. On 26th May 1922 their law agents posted a copy of the initial writ which contained the defenders’ claim against the pursuer in a registered letter addressed to him at 91 King Street, Glasgow. The postman took the letter to that address and there interviewed the manager of Messrs Thomas Craig & Company, who were then in occupation of the premises. The evidence regarding what took place between the postman and the manager is conflicting, but in the result the postman marked the letter ‘refused’ and returned it to the Sheriff-Clerk's office. Thereafter the defenders enrolled the initial writ before Sheriff A. S. D. Thomson, and he granted decree against the pursuer as craved with £7, 7s. 10d. of taxed expenses. On 21st August 1922 the pursuer was served by a sheriff-officer with a charge of payment, the warrant of which was the decree to which I have referred. A correspondence ensued between the pursuer's and the defenders’ law agents. The defenders proceeded to present a petition for the sequestration of the pursuer's estates, upon which a first deliverance was pronounced, and a notice of which appeared in the Gazette. The pursuer's agents thereupon, in order to avoid further damage to his credit, undertook that if the petition were withdrawn they would pay the amount of the defenders’ claim and expenses. The petition was accordingly dismissed, and the pursuer's agents remitted to the defenders’ agents the amount decerned for, with interest and expenses. The pursuer thereafter raised the present action, which concludes for reduction of the decree upon which diligence was done against him in the manner I have narrated.”

The pursuer pleaded—“1. The decree libelled having been obtained by the defenders in the absence of the pursuer, and without any legal service upon him of the initial writ upon which the decree proceeded, and without citation of the pursuer, the pursuer is entitled to decree of reduction as concluded for. 2. The pursuer not having been on 26th May 1922 subject to the jurisdiction of the Sheriff of Lanarkshire, the said decree in absence was null and void, and decree of reduction ought to be granted as craved. [Above plea-in-law (2) was added in terms of minute of amendment referred to in Lord Ordinary's interlocutor of 18th October 1923, infra.] 3. The defences being irrelevant ought to be repelled.”

The defender pleaded—“1. The action being incompetent generally, and particularly in respect (1) that the pursuer being in timeous knowledge of the facts constituting the alleged invalidity did not exhaust his statutory rights and remedies; (2) that the decree sought to be reduced has been obtempered; (3) that the payment of the sum in the decree interest and expenses was made as part of a transaction or compromise, it ought to be dismissed. 2. The pursuer's averments being irrelevant, the action should be dismissed. 3. The pursuer

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being personally barred from challenging the validity of the said decree, the defenders should be assoilzied. 5. The Sheriff-Substitute who pronounced the decree now sought to be reduced having been satisfied that the said letter of citation had been tendered at the proper address of the pursuer and refused, and having held the tender equal to a good citation, the said decree is valid and not open to reduction. [Above plea-in-law (5) was added in terms of minute of amendment referred to in Lord Ordinary's interlocutor of 18th October 1923, infra.] 6. The pursuer having no title in or interest to sue the present action, the action should be dismissed.” [Above plea-in-law (6) was added by way of amendment in course of debate upon reclaiming note.]

On 19th July 1923 the Lord Ordinary ( Blackburn) repelled the first plea-in-law for the defenders and allowed to the pursuer a proof of his averments on the merits and to the defenders a conjunct probation.

On 18th October 1923 the Lord Ordinary ( Blackburn) having taking the proof adduced for the parties and heard counsel, opened up the record and allowed the pursuer to add his second plea-in-law ( quoted supra) and the defenders to add their fifth plea-in-law ( quoted supra) in terms of minutes of amendment, and the amendments having been made, of new closed the record and made avizandum.

On 7th November 1923 his Lordship sustained the second plea-in-law for the pursuer and granted decree of reduction in terms of the conclusion of the summons.

Opinion.—“The facts averred by the pursuer on record are in my opinion fully established by the proof which has now been led. The pursuer's place of residence and principal place of business has all along been in Aberdeen. In 1919 he leased a site at 91 King Street, Glasgow, from the Glasgow and South-Western Railway Company, where he erected business premises containing an office, one other small room, and four rooms used for smoking fish. Here he carried on a branch business intermittently, and it is proved that for some months prior to April 1922 the business there was suspended. It was re-started about the beginning of April 1922, and on 17th April the pursuer sold the business to Messrs Thomas Craig & Company, a firm of which the sole partner is the witness Mrs Rennie Mackay. That firm started business at 91 King Street on Monday, 24th April, and since that date the pursuer has had no connection with these premises or any other place of business in Glasgow. Between 17th and 24th April the pursuer and Mrs Mackay visited the offices of the railway company, and it was arranged that she should be accepted as tenant of the premises from 24th April in place of the pursuer, although for convenience the lease was not to be transferred till the approaching term of Whitsunday. The pursuer on parting with the business cancelled his registered telephone and telegraphic addresses in Glasgow, and by arrangement with Mrs Mackay instructed a house painter to delete his name from the signboard over the door and window of 91 King Street and to substitute the name of Messrs Craig for his own. This was done, but without the knowledge of the pursuer a small brass plate on the door bearing the words ‘William R. Bruce, Head Office, Albert Quay, Aberdeen,’ was left in position. I have no doubt that the transaction was a perfectly bona fide one, and that from 24th April inclusive the pursuer had no place of business in Glasgow. There was nothing to connect him with 91 King Street except the plate with his Aberdeen address on it and a reference on his unexhausted notepaper to the Glasgow branch. This letter paper also contained an instruction to address replies to the pursuer to ‘Albert Quay, Aberdeen.’ It appears, as might be expected, that after the pursuer had given up his Glasgow branch a certain number of circulars and unimportant letters addressed to him at 91 King Street were delivered there. The evidence of the postman John Mackay shows that the number of these documents was trifling, and I think it is clear that the majority of them must have been left in the letter-box at the morning delivery and not handed to anyone in the employment of Messrs Craig & Co. What became of them is not very clear, but some at all events appear to have been re-directed and to have reached the pursuer in Aberdeen. He had given no instructions or authority to Messrs Craig & Company to accept letters on his behalf or to forward them, and he himself says that he thought the letters had been forwarded by the Post Office authorities in Glasgow. This is explained by the fact that during the period when his business was suspended, prior to April 1922, he had given instructions to the post office to forward to Aberdeen all letters addressed to him at 91 King Street, and that he had never cancelled these instructions, although as soon as he himself reopened the premises at King Street his correspondence was delivered there in ordinary course by the postman. When the registered letter addressed to the pursuer, which contained the citation, arrived at 91 King Street it was tendered to Mr Hannan by Mackay, the postman, who states in evidence that he knew Mr Hannan ‘as manager of Messrs Craig & Company.’ With reference to what passed between these two on that occasion I preferred the evidence of Mr Hannan to that of Mackay. After hearing their evidence I entertained no doubt that when Mr Hannan refused to accept the letter he made it quite clear to Mackay that his reason for doing so was that the pursuer had gone away from 91 King Street to Aberdeen, and that he had no authority to accept letters on his behalf. Mackay practically admitted that he was aware that the pursuer had left that address, but instead of marking on the envelope that the letter had not been delivered because the addressee had ‘gone away’ he marked it ‘refused.’ He seemed to think that the existence of a brass plate on the door with Mr Bruce's Aberdeen address on it was quite sufficient justification for his doing so. Considering the importance

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which attaches to the delivery of a citation by registered letter, I think it right to say that I hope that such an erroneous idea of the duties of a postman under such circumstances is not general in the service.

“At the discussion in the procedure roll no reference whatever was made to the proceedings before the Sheriff after the registered letter had been returned to the sheriff-clerk marked ‘refused.’ The only question debated was whether the defenders were to be entitled to lead evidence on the plea of personal bar. This I refused for the reasons given in my former note, and I understood that the only question remitted to proof was whether the letter had been offered at an address where the pursuer carried on business. At the proof, however, defender's counsel proposed to lead evidence as to what had passed before the Sheriff for the purpose of proving that the Sheriff had satisfied himself that the letter had been tendered at the proper address of the pursuer, and held the tender equal to a good citation. Counsel referred to the Citation Amendment Act 1882 (45 and 46 Vict. cap. 77), section 4 (5), and stated that he was prepared to argue that a finding by the Sheriff that the citation was good was final and not subject to review. The line of evidence was objected to on the ground that there were no relevant averments on record to support it, but after discussion between the parties the objection was withdrawn on the understanding that both parties should be allowed to amend. I had considerable doubt as to the competency of evidence tending to show what the Sheriff had done in view of the fact that there was no finding by the Sheriff in the papers before me that he made any inquiry into the matter at all, but in view of the objection being withdrawn I considered it advisable to allow the evidence before dealing with the question finally. The defenders then added an averment at the end of answer 4 and put on a new plea-in-law raising the question referred to under the Citation Act. The pursuer added a plea to the effect that the Sheriff had no jurisdiction. According to the evidence led it is the practice in the Sheriff Court in Glasgow, when the citation of a defender by registered letter has been returned through the post office marked ‘refused,’ and the pursuer in the action desires decree, for the initial writ with the service copy and envelope to be laid before the Sheriff. If the Sheriff is satisfied that the citation has been sufficient and is prepared to grant decree, he places his initials on the front of the initial writ. An interlocutor granting decree is then prepared for the Sheriffs signature, but this interlocutor contains no reference to the fact that the Sheriff has satisfied himself that this citation which has been returned is a good citation. It is proved that on this occasion the service copy and envelope were laid before the Sheriff, and he had an interview with the witness Mr Gemmell, a procurator in the employment of the defenders’ agents. Mr Gemmell states that he informed the Sheriff that his firm had at one time acted as agent for the pursuer, that they had communicated with him at 91 King Street both by letter and telephone, and that the pursuer's name was in both the Glasgow Directory and the Glasgow Telephone Directory. The Sheriff thereupon placed his initials on the initial writ and subsequently signed the interlocutor which is set out in condescendence 5. Mr Gemmell did not, however, inform the Sheriff that his firm had not communicated with the pursuer at that address for some months, and that no attempt had been made by them to ascertain whether the pursuer was still carrying on business at that address or not. Thus the statements made were not inaccurate, but they were most misleading and presumably led the Sheriff to initial the writ and sign the interlocutor granting decree. I have no doubt that the citation was bad in respect that it was not tendered at the pursuer's place of business, nor to anyone who had any authority to accept it on his behalf. Had the pursuer been subject to the Sheriff's jurisdiction I should have had to deal with the question under the Citation Act raised by the defenders' plea. The only authority quoted to support the finality of the Sheriff on the validity of the citation is a dictum by Lord Young in the case of Steuart v. Ree, 12 R. 563. It may be that where the Sheriff has jurisdiction over the defender in a Sheriff Court action, the proper procedure is for a defender who wants to challenge the validity of a citation which has been held by the Sheriff to be good to seek to be reponed against the decree in absence which has followed. But it is unnecessary for me to express an opinion on this question or on the question whether I was entitled to allow any inquiry into what passed before the Sheriff in the absence of any notification in the process papers by the Sheriff that he had taken steps to satisfy himself as to the citation. In this case not only was the citation bad, but the Sheriff had no jurisdiction to deal with the matter at all, as the pursuer was neither resident in the sheriffdom nor had he a place of business there—Sheriff Court Act 1907, section 6. Whatever powers the Sheriff may have to hold a bad citation as good they cannot be interpreted as a power to give himself jurisdiction where in fact he has none. I shall accordingly sustain the pursuer's second plea-in-law and grant decree as craved.”

The defenders reclaimed, and argued—1. The pursuer was personally barred from challenging the validity of the decree in respect that (1) the defenders were misled by the pursuer into thinking that he still had a place of business and carried on business at the Glasgow address, (2) the pursuer had failed to avail himself of the remedies of reponing or suspension, and (3) the payment made by the pursuer was made as part of a transaction or compromise without any reservation of the right to sue the present action— Bell v. Gunn, 1859, 21 D. 1008, per Lord President (M'Neill) at 1009; Gillespie v. Dods, 1857, 19 D. 475, per Lord Justice-Clerk (Hope) at 479; Scott v. Dunlop, 21st December 1838, F.C., vol. xiv, p. 303, per

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Lord Mackenzie at 314; Sinclair v. Brown, 1837, 15 S. 770, at 772; Ewing v. Cheape, 1835, 13 S. 515; M'Donald v. M'Kenzie, 1822, 2 S. (N.E.) 3. The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), First Schedule, Rules 27, 28, and 29, was also referred to. 2. The pursuer had no title or interest to sue the present action. An action the summons in which contained a bare conclusion for declarator was incompetent. So also was an action such as the resent, the summons in which contained a are conclusion for reduction— Grigor v. Robertson, 1856, 18 D. 1313, per Lord Deas (Ordinary) at 1315. Reduction was a competent mode of review but the remedy was subject to equitable control by the Court— Taylor's Trustees v. M'Gavigan, 1896, 23 R. 945, 33 S.L.R. 707, per Lord Kincairney (Ordinary) at 23 R. 948 and 949, 33 S.L.R. 708 and 709; Mackay, Practice of Court of Session, vol. ii, pp. 496 and 498. 3. The defenders were not now barred from submitting to review the Lord Ordinary's interlocutor repelling their first plea-in-law—Court of Session Act 1868 (31 and 32 Vict. cap. 100), section 52; Wilson v. Hovell, 1924 S.C. 1, 61 S.L.R. 1. 4. The citation was valid. The evidence showed that at its date the pursuer still had a place of business at the Glasgow address. 5. The Sheriff-Substitute had satisfied himself that the registered letter had been tendered at the proper address and had been refused, and had held the tender equal to a good citation. Accordingly the Sheriff-Substitute's decision in the matter was final and the Court could not review it—Citation Amendment (Scotland) Act 1882 (45 and 46 Vict. cap. 77), section 4 (5); Steuart v. Ree, 1885, 12 R. 563, 22 S.L.R. 366, per Lord Young at 12 R. 564, 22 S.L.R. 366. The cases of Matheson v. Fraser, 1911, 2 S.L.T. 493, and Roberts v. Crawford, 1884, 22 S.L.R. 135, were also referred to. 6. The Sheriff-Substitute had jurisdiction to entertain the action. The evidence showed that at the date of citation the pursuer still carried on business and had a place of business within the jurisdiction. Moreover, the plea of “no jurisdiction” in an action of reduction, which was treated as a review, required even more than in an ordinary action to be stated in limine, but the pursuer had not stated the plea in limine.

Argued for the pursuer and respondent—1. The pursuer was not personally barred from challenging the validity of the decree. In order to maintain the plea it would be necessary for the defenders to aver and prove that the pursuer had represented to them that he had a place of business in Glasgow and that they relied on the representation and acted on it so as to change their position to their prejudice, but there were no such averments—Rankine, Personal Bar, pp. 2–5 and 210; Bower, Estoppel, p. 121; Carr v. London and North-Western Railway Company, (1875) L.R., 10 C.P. 307; Freeman v. Cooke, 1848, 2 Ex. 654, per Park at 663. The pursuer was not barred by reason of his not seeking to be reponed and not suspending or by reason of the payment which he had made— Black v. John Williams.& Company (Wishaw), 1924 SC (HL) 22, 61 S.L.R. 26; Taylor's Trustees v. M'Gavigan ( cit.); M ‘Lachlan v. Rutherford, 1854, 16 D. 937; Mackay, Practice of Court of Session, vol. ii, p. 498. 2. The pursuer had a title and an interest to sue the present action. The reduction of the decree was a necessary preliminary to an action of damages. Moreover, the continued existence of the decree was a reflection on the pursuer's financial stability and might be fatal to his credit in the commercial world— Mazure v. Stubbs, Limited, 1919 S.C. (H.L.) 112, 56 S.L.R. 535; Gibson & Company v. Anderson & Company, 1897, 24 R. 556, 34 S.L.R. 435. In any case it was not necessary for the respondent to show a patrimonial interest in having the decree set aside, provided that he showed that the decree had been improperly obtained— Rachkind v. Donald & Sons, 1916 S.C. 751; Ferguson v. Malcolm, 1850, 12 D. 732; Beattie v. M'Lellan, 1844, 6 D. 1088. The payment which the pursuer had made to the defenders was made of necessity to avoid his being sequestrated. 3.The defenders were now barred from submitting to review the Lord Ordinary's interlocutor which repelled their first plea-in-law. They had joined issue on the averments which the Lord Ordinary had remitted to probation, without having challenged his repelling of the plea. The authorities showed that there were well-recognised exceptions to the general rule of section 52 of the Court of Session (Scotland) Act 1868— Wilson v. Robertson, 1884, 11 R. 893, 21 S.L.R. 616; Duncan's Factor v. Duncan, 1874, 1 R. 964; North British Railway Company v. Gledden, 1872, 10 Macph. 870; Mackay, Manual of Practice, p. 304. The case of Wilson v. Hovell, cit., was a case of proof before answer—see Lord Justice-Clerk (Alness) at 1924 S.C. 10, 61 S.L.R. 6. The point in question was not decided in that case—see Lord Ormidale at 1924 S.C. 13, 66 S.L.R. 7, and Lord Anderson at 1924 S.C. 13, 61 S.L.R. 8. 4. The citation was invalid. The evidence showed that at its date the pursuer had ceased to have a place of business at the Glasgow address. Accordingly the decree was fundamentally bad— Clark v. Beattie, 1909 S.C. 299. 46 S.L.R. 214, per Lord President (Dunedin) at 1909 S.C. 303, 46 S.L.R. 216. 5. The Sheriff-Substitute had not, in terms of section 4 (5) of the Citation Amendment (Scotland) Act 1882, satisfied himself that the registered letter had been tendered at the proper address and had been refused, and had not held the tender equal to a good citation. The letter was not presented to him as required by the sub-section—Dove Wilson, Sheriff Court Practice (4th ed.), p. 125. Moreover, he had pronounced no interlocutor. In any case he had no jurisdiction to deal with the case. Accordingly the validity of the citation was still open to challenge. 6. The Sheriff-Substitute had no jurisdiction to entertain the action. The evidence showed that the pursuer had ceased to have a place of business and to carry on business within the jurisdiction at the date of citation. The Sheriff Courts (Scotland)

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Act 1907, sec. 6 ( d), and the Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. cap. 70), sec. 46, were referred to.

At advising—