Scottish Court of Session Decisions

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Cite as: [1873] ScotLR 10_504, [1873] SLR 10_504

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SCOTTISH_SLR_Court_of_Session

Page: 504↓

Court of Session Inner House Second Division.

Thursday, June 19. 1873.

[ Lord Shand, Ordinary.

10 SLR 504

Gibb

v.

City of Edinburgh Brewery Co.

Subject_1Jury Trial
Subject_2Motion to vary Issue
Subject_3Privilege
Subject_4Charge — Diligence.
Facts:

A bill having been protested against A, and he having been charged thereon notwithstanding payment of the contents— held, in adjusting issues in an action of damages at his instance, that this was not a case of privilege, a charge being a diligence, not a judicial act, and that it was not consequently necessary to aver malice.

Headnote:

On 11th June the Lord Ordinary pronounced the following interlocutor:—“The Lord Ordinary approves of the Issue, No. 14 of process, as the issue for the trial of the cause: Appoints the trial to take place before the Lord Ordinary, with a jury, at Edinburgh, on Friday the 27th day of June current, at half-past ten o'clock forenoon: Grants diligence at the instance of the parties against witnesses, and ordains a precept to be issued to the Sheriff for summoning a jury accordingly.

“Note.—The Lord Ordinary being of opinion that the facts, as stated on record by the pursuer, do not disclose a case of privilege on the part of the defenders, in obtaining and executing the diligence complained of, has approved of the issue in the terms adjusted in No. 14 of process. Should the case, on the facts as disclosed at the trial, appear to the Lord Ordinary to be one of privilege, the Lord Ordinary will then direct the jury that malice and want of probable cause must be proved in order to entitle the pursuer to a verdict in his favour.”

The defender wished the issue taken in this case to be varied, and moved the Court to do so. The ground alleged was that the case, being one of privilege, an averment of malice was necessary. The motion was opposed by the pursuer. The issue was as follows—

It being admitted that on or about 6th February 1872 the pursuer accepted a bill for £23,10s., payable three months after date, drawn on behalf of the defenders by James Nisbet, then their interim managing director,

Whether, on or about 20th May 1872, the defenders wrongfully caused the said bill to be protested against the pursuer, and the pursuer to be charged thereon, notwithstanding that payment of the contents of the said bill had been made by the pursuer on or about the 17th day of May 1872, to the loss, injury, and damage of the pursuer. Damages laid at £500.”

Argued for the defenders—There was no issuable matter apart from malice and want of probable cause. The wrong-doing had begun on the part of the pursuer, who admittedly had been in delay in paying the bill from 9th May 1872 till 17th May. The charge which was given on the 20th May was withdrawn two days afterwards. It was held in Davies' case that regard could not be had to the publication of the Black Lists. What the pursuer complained of was therefore simply that the defenders had represented him to the Keeper of the Record, and to himself, to be eleven days behind in making payment, while admittedly he had been eight days behind.

In the case of Gardner it had been settled that the mere recording of a protest was not actionable unless it had been done maliciously. In the case of Doyle there had been imprisonment, and the illegality of the imprisonment was held to give a ground of action without proof of malice and want of probable cause. The present case was something between the two, for there had been a charge given. A charge was not itself diligence, though it contained an intimation that diligence would be done if it was not obeyed. In Ormiston it was held that a charge given wrongfully was not a good ground of action. The case of Davies was also an authority in point, for though the Court may have proceeded to some extent on the fact that Davies & Company could have prevented decree passing by seeing that the action was taken out of Court, a similar feature existed in the present case, as the pursuer could have gone to the defenders and got up the bill from them, and so ensured that no protest should be taken.

Authorities— Davies, 5 Macph. 842; Gardner, 2 Macph. 1183; Doyle, 23 D, 13; Ormiston, 4 Macph. 488.

Argued for the pursuer—This was not a case of privilege at all. A charge was in every sense diligence.

At advising—

Judgment:

Lord Cowan—In this case the Lord Ordinary considers an issue simply resting upon the fact of the wrongful act of the defenders to be sufficient, whereas the defenders' counsel desires that the question of malice should be inserted. That there exists in this matter an essential distinction between judicial proceedings and diligence cannot be doubted. I entirely, on this point, agree with the view indicated by Lord Neaves during the progress of the discussion. That a charge on a decree is not diligence, but a judicial act, I have never heard maintained until now. A charge is the commencement of diligence; it is the first stage therein,

Page: 505↓

and the rest of the diligence follows, which may end in the incarceration of the debtor. In the Personal Diligence Act 1838 we find the following section—“Provided always, and be it enacted, that diligence executed under the provisions of this Act shall have the same effect as if such diligence had been executed by virtue of letters of horning or letters of caption, or if arrestments and poindings had been executed under the forms heretofore in use.” Formerly, diligence proceeded by charge on letters of horning, and if not complied with, letters of caption were expede, also under the Signet, for the apprehension and incarceration of the debtor. The registration of a decree of a competent court is substituted for the old form of diligence, but a charge is still the first step. Does there then exist this essential difference between judicial procedure and diligence? There can be no question of this; and if we look at the consequences following upon the giving of a charge, it is clear that by its mere execution a man's credit may be destroyed, or at least may be seriously affected. I think, therefore, that in the circumstances the simple issue of wrongful is enough. There is no privilege. What was done was not judicial procedure, but alleged wrongful diligence. The Lord Ordinary has taken the right course.

Lord Benholme—My opinion in this case is quite different. We have here a man who began by being in the wrong, and thereafter allowed several days to elapse before making payment; ultimately, when that payment was made, it was not upon the receipt itself, but merely upon a discharge, not bearing to be for anything save money received. Yet the original wrongdoer brings an action and refuses to allow of an issue of malice being laid before the jury. He began the wrong, and in these circumstances, without entering any further into the details of the case, I am humbly of opinion that justice as between the parties requires that he should be put upon his proof in the matter.

Lord Neaves—I agree with the view taken by Lord Cowan. With reference to the case of Davies v. Brown, the question there was whether an issue of malice was or was not necessary. There cannot be a doubt that malice is necessary in a judicial proceeding while judicial steps are going on, but there is not any indication to be found that after decree is taken, and when the party is wrongfully proceeding to execute that decree, malice would be a necessary averment in the question of diligence. That a charge is diligence I have no doubt. Under the Act 1621, a charge is “begun diligence” so that if a person removes goods after a charge he is held to do so to defeat diligence, as he is by the charge under the ban of diligence, and in a position like that of a bankrupt. This is the actual wrong indicted by a charge unless an excuse or explanation is forthcoming to account for it all, but I cannot see how the question of privilege can be raised when a wrong was actually done.

Lord Justice-Clerk—It appears to me that the question as to whether this was a case of privilege or not in no way comes to be affected by the bill being paid when it was due, or by the fact that the receipt does not bear to be a discharge of the bill, but merely an acknowledgement of money paid. These are points which the pursuer will have to prove. A wide distinction has been in our law drawn between a judicial proceeding and diligence, and on the question as to whether the giving of a charge is part of the diligence, I agree with Lords Cowan and Neaves in regarding it as such. Although the recording of a protest might be deemed a judicial proceeding, I have not any doubt that, as regards the technical form, the Lord Ordinary is right in holding a charge as a diligence, and therefore not privileged.

The real position of matters is manifestly that Mr Wright accepted this payment not as a discharge but as a payment to account. This, the vital point of the case, should be opened up at the trial, and being anxious to have it done I should be disposed to insert in the issue after “wrongfully” the words “and in the knowledge that the same had been paid.”

The issue was varied in accordance with the suggestion of the Court.

Counsel:

Counsel for Pursuer— H. J. Moncrieff. Agent— A. D. Murphy, S.S.C.

Counsel for Defender— Rhind. Agents— Ferguson & Junner, W.S.
1873