M'Gregor v M'Laughlin
| Jurisdiction | Scotland |
| Judgment Date | 17 November 1905 |
| Date | 17 November 1905 |
| Docket Number | No. 12. |
| Court | Court of Session |
Lord President, Lord M'Laren, Lord Kinnear.
ReparationMisuse of ProcessDecree in absence against a defender invalidly citedReturn of citation bearing that citation validly executedMalice.
In a small-debt action raised by A against B, the sheriff-officer inadvertently served upon B a summons directed against a third party, but returned upon A's summons an execution of citation bearing that B had been validly cited. A thereupon took decree in absence against B, which was published in various Trade Journals. B raised an action of damages against A, but did not aver that he had acted, maliciously or that he knew of the error in citation.
Held that, as the pursuer did not aver malice, the action was not relevant.
Observations as to the distinction between liability for damage caused by mistakes in process and for damage caused by misuse of diligence.
Observed, per Lord Kinnear, that the pursuer was entitled to rely upon the execution of citation returned by the sheriff-officer.
William M'Gregor, grocer, 6 Steel Street, Glasgow, was indebted to Edward M'Laughlin, wholesale butter and egg merchant, 39 Parnie Street, Glasgow, in the sum of 3, 19s. 4d. For this sum M'Laughlin took out a small-debt summons against M'Gregor, and instructed a sheriff-officer to serve the same. The sheriff-officer inadvertently delivered to M'Gregor, in place of the summons directed against him, a summons at the instance of Alexander Cameron against Thomas M'Cartney, concluding for 4 sterling. The sheriff-officer, however, returned an execution of citation in regular form, which was as follows:Upon the 30th day of January 1905 years, I duly summoned the within designed Mr W. M'Gregor, defender, to appear and answer before the Sheriff in the matter, and at the time and place, and under the certification within set forth. This I did by delivering a full copy of the within summons or complaint with a citation thereto annexed, and copy account, for the said defender in his hands personally within his premises at 6 Steel Street, Glasgow. A. M., sheriff-officer. When the small-debt action was called in Court on 6th February 1905, no appearance was made for M'Gregor, and M'Laughlin thereupon took decree in absence against him for 3, 19s. 4d., with 4s. 4d. of expenses, and this decree was published in Stubbs' Gazette and other publications which publish what are commonly known as Black Lists. On. 16th February the sheriff-officer proceeded to charge M'Gregor under this decree, but on the charge being given, M'Gregor applied for and obtained a warrant sisting execution in terms of sec. 16 of the Small-Debt Act, 1837 (1 Vict. c. 41). On the case coming up for rehearing on 6th March 1905 the Sheriff-substitute dismissed the action on the ground that it had not been served on M'Gregor, and awarded him 6s. of expenses.
M'Gregor raised an action in the Court of Session against M'Laughlin, concluding for 500 in name of damages for wrongously taking decree in absence against him, and wrongously and illegally doing diligence. The pursuer did not aver that in so doing the defender had acted maliciously, or that he was even aware of the irregularity in the citation. The pursuer did not aver that he had suffered any damage in consequence of the charge, but with regard to the publication of the decree in absence in the Black lists the condescendence contained the following averments:The publication of a tradesman's name in said journals is highly injurious to him, and the pursuer's credit and trade reputation have been seriously prejudiced by the fact that his name appeared in said publications. For said publication and consequent injury the defender is responsible. Had said summons been served upon pursuer he would have paid said debt. By the defender's failure to have said summons served upon pursuer there was no process in said small-debt action, and the proceedings therein were fundamentally null. The said decree in absence was thus obtained wrongously and illegally. For the injury caused to pursuer by said publication in said trade journals he is entitled to reparation.
The pursuer pleaded, inter alia;(1) The defender having wrongously taken decree in absence against pursuer, and he having suffered damage through the publication of said decree in absence as condescended on, the defender is liable to the pursuer in reparation.
(2) The defender having wrongously and illegally done diligence against the pursuer, as condescended on, is liable in reparation. (3) The defender, as the employer of said sheriff-officer, is liable for his improper, illegal, or wrongous actings.
The defender pleaded;(1) No relevant case.
The pursuer proposed the following issues:(1) Whether, on or about 6th February 1905, the defender wrongfully took decree in absence against the pursuer in the Small-Debt Court, Glasgow, to the pursuer's loss, injury, and damage? (2) Whether, on or about 16th February 1905, the pursuer was wrongfully charged at the instance of the defender to pay the sums of 3, 19s. 4d. and 4s. 4d. of expenses, to the pursuer's loss, injury, and damage?
On 6th June 1905 the Lord Ordinary (Dundas) allowed the first issue, but disallowed the second.*
The defender reclaimed, and argued;The Lord Ordinary should have disallowed the first issue also. This being a case of a party following out the ordinary course of judicial proceedings, he could not be made liable for reparation except on averments of malice, and both malice and want of probable cause must be inserted in the issue.1 As...
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