Scottish Court of Session Decisions

The Lord Ordinary pronounced the following interlocutor:—

“ Edinburgh, 25 th January 1875.—The Lord Ordinary having heard parties procurators on the closed record, and more particularly on the first plea-in-law for the defender, and considered the debate and whole process, Finds as matter of law that the pursuer—assuming the facts of the case to be as represented in the averments of the pursuer upon record—is not entitled to recover damages from the defender: Therefore sustains the said plea in law, dismisses the action, and decerns: Finds the defender entitled to expenses, &c.

Note.—This is an action of damages for the alleged wrongful incarceration of the pursuer. There are two grounds upon which that proceeding is impugned. The one is, that the small-debt decree constituting the warrant did not ‘apply in any way to the pursuer;’ and the other, that payment under protest was offered to and refused by the officer at the time of apprehension. A few words as to each of these will explain the reason for which the action has been dismissed.

When the pursuer says that the decree ‘did not apply to him,’ this is what is meant. He was personally served with a copy of a small-debt summons, in which the person called as defender was described as ‘Charles Kean, butler, Pinkie House, Musselburgh.’ The pursuer at the time was butler at Pinkie House, Musselburgh, and his surname is Kean or Keene; his christian name, however, not being ‘Charles,’ but ‘George Robert.’ He says (cond. 2) that when served with the copy he mentioned to the officer that the copy was not for him. Nevertheless he kept the copy, and yet did not appear at the diet of court to which it was a citation. Decree in absence was therefore pronounced. In virtue of an extract of this decree he was afterwards charged for payment; but he did nothing to secure protection against the threatened imprisonment. He might, as provided for by sec. 16 of the 1st Viet. c. 41, have obtained a rehearing; but this was not asked for, and so the present defender, the creditor, was left free to put the decree to execution, as was done. The pursuer no doubt alleges (cond. 7) that ‘the defender was duly warned before the execution of the said warrant of apprehension that the decree he had obtained did not apply to the pursuer.’ What this imports is left to be conjectured; but plain it is that though there was a partial misnomer, on account of which the regularity and consequently the sufficiency of the decree as a warrant for imprisonment might be challenged with a possibility of success, provided the challenge had come in time, the pursuer is the person to whom the decree applied. He does not say that there was another person of the name of Kean who was butler at Pinkie House; nor does he say,—which is even a more pregnant omission,—that he had not incurred a debt to ‘Charles Aitken, corn merchant, Fisherrow, Musselburgh,’ the description of the present defender given in the account prefixed to the small-debt summons, as averred in condescendence, article 2. The error, such as it was, could lead to no misconception; and if it was to be made the ground of an objection the pursuer ought to have appeared in court either at the original diet or at a diet for rehearing, which on application must have been granted. But he lay by, either indifferent to the consequences or willing to turn these to profit; and having acted thus, the law will not recognise as a ground for damages the incarceration which ensued. For this, were authority needed, it is to be found in the decision of Bell v. Gunn, 21st June 1859, 21 D. 1008, which was followed in the subsequent case of Peddie v. Miller, reported on issues to the First Division of the Court, July 18, 1861. The latter is not to be found in the books, no final judgment having been pronounced; but the Lord Ordinary (having been one of the counsel in the case) is able to say that after a full argument all the Judges expressed their approval of those views of the case according to which Bell v. Gunn had been decided.

As to the second of the grounds of complaint here put forward, all that the Lord Ordinary has to say is, that a sheriff-officer is not by his employment as such impliedly empowered to take payment of the debt either under protest or even without protest. He is not the agent of the creditor, and his duty begins and ends with the execution of the warrant; if the pursuer desired to avert the risk of imprisonment there was ample opportunity before his apprehension; and the alleged refusal of the officer to take payment when offered under protest, is a suggestion of hardship for which there is not in law or in reason any real foundation.”

This interlocutor was not reclaimed against, and has accordingly become final.