Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Lanarkshire in an action of damages at the instance of William Wilson, baker, Glasgow, as an individual and as executor of the deceased John Wilson, against Archibald Mackie, provision merchant, Glasgow, as an individual, and against him and his son Archibald Mackie junior, as partners of the firm of Archibald Mackie. Previously to the raising of this action there had been various legal proceedings between the parties in the Sheriff-court of Glasgow; in particular on 4th December 1872, the defenders, or one or other of them, had raised a summons against the pursuer, in his capacity of executor, for a balance of £142, 6s. 6d., which they alleged to be due to them by the deceased John Wilson. The pursuer averred that the defenders maliciously, without probable cause, and for the purpose of injuring his personal credit, had, on the dependence of that action, used arrestments in the hands of various persons of funds belonging to the pursuer personally, and not in any way connected with the executry estate, these arrestments proceeding upon the warrant contained in the foresaid summons against the pursuer as executor. None of the executry funds were ever held by any of the parties in whose hands the pursuer's funds were thus arrested. The schedules of arrestment used were in the following terms:—“I, Alexander Macintyre, sheriff-officer, by virtue of a libelled summons from the Sheriff-court books of Lanarkshire, containing warrant to arrest, dated at Glasgow, the fourth day of December 1872 years, raised at the instance of Archibald Mackie, provision merchant, 82 Main Street, Anderston, Glasgow, pursuer, against William Wilson, baker, Thistle Street, Glasgow, executor decerned and confirmed to the late John Wilson, baker in Glasgow—in Her Majesty's name and authority, and in that of said Sheriff, lawfully fence and arrest in the hands of you, the sum of Three hundred pounds sterling, more or less, due and addebted by you to the said William Wilson, together also with all goods and gear, debts, sums of money, or any effects whatever, lying in your hands, custody, and keeping, pertaining, or in any manner of way belonging to the said William Wilson, or to any person or persons for his use and behoof, all to remain under sure fence and arrestment, at the instance of the said pursuer, aye and until payment be made or security be found, acted in the Sheriff-court books for Lanarkshire, as accords of law, with certification.—This I do upon the seventh day of December 1872 years, before Alexander Macintyre junior, residing in Glasgow, witness.”

A petition for the loosing of these arrestments was presented to the Sheriff, which was granted without caution, and his judgment was sustained on appeal. The judgment proceeded on the footing that it was the personal and not the executry funds of the pursuer that had been arrested. In the present action the sum of £150 in name of damages was claimed for the loss, injury, and damage which the pursuer had sustained through the actings of the defenders, or of one or other of them. The defenders pleaded that the arrestments had been legally and regularly laid in virtue of a warrant of Court.

The defender Archibald Mackie senior having been sequestrated, his trustee did not enter an appearance, and on 15th July 1873 the Sheriff-Substitute pronounced an interlocutor holding him confessed, and decerning against him as libelled.

Archibald Mackie junior being thus the only defender, the Sheriff-Substitute ( Gutheie) after a proof pronounced the following interlocutor:—

“ Glasgow, 10th December 1874.—Finds that the individual defender Archibald Mackie junior maliciously and wrongously caused the arrestments libelled to be used against the funds of the pursuer: Finds him liable in damages therefor jointly and severally with the other individual defender Archibald Mackie, against whom decree by default has already passed for the whole sum sued for: Assesses the said damages at £25: Finds the defender Archibald Mackie junior liable in expenses.

Note.—In the conjoined actions between the same parties the Sheriff-Substitute has found that a partnership exists between the Mackies to the effect at least of making them responsible to the present pursuer in respect of his claim in that action. But he is not sure that the principles of agency on which he proceeded there are applicable to a claim of damages for a malicious and illegal act which is not properly within the agency of a partner acting for his firm. Possibly the Sheriff-Substitute may take too narrow a view of a firm's liability for the way in which its members use arrestments in the course of their business. But he thinks that in the present action, which is directed against both the Mackies, as individuals as well as partners, and concludes

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for decree against them jointly and severally, the justice of the case may be arrived at by decrees against them as individuals, leaving the firm out of the question.

There is no direct proof of malice on the part of the younger Mackie. But there is a clear proof of malice on the part of the father; and considering that the younger Mackie was the avowed pursuer of the action on the dependence of which the arrestments were used, as well as the proved relations between the parties, and the nature of the arrestments, which were entirely disconform to their warrant, and were therefore recalled by this Court without caution, the Sheriff-Substitute thinks that he is bound to impute that legal malice to the son also, now the only defender.”

On appeal the Sheriff-Principal ( Dickson) pronounced the following interlocutor:—

“ Glasgow, 11 th March 1875.—Adheres to the interlocutor appealed against, except in so far as it assesses the damages in question at £25 sterling, and decerns for that sum: In lieu thereof assesses the same at £10 sterling, and decerns therefor with interest as libelled.

Note.—The only question submitted to the consideration of the Sheriff on the appeal was the amount of damages; the defenders' agent frankly admitting (what could hardly be disputed) that damages had been incurred.

As to their amount, the ‘Sheriff has considerable difficulty. On the one hand, merely nominal damages are not enough; for it is evident that the locking up of the funds of a man in business must cause him annoyance and trouble, and tends to impair his credit. On the other hand, the original pursuer was unable to specify any damage which he had incurred, or to say that any customers had left him in consequence of the arrestments in question. In these circumstances it is thought that £25 is too large a sum to meet damage of a not very tangible kind, and that £10 is a fairer sum.

The full amount of expenses has been allowed, because the case was not appropriate for trial under the Small Debt Act.”

Archibald Mackie junior appealed to the First Division.

Argued for him—The schedules of arrestment were ambiguous, but if it should be held that they were directed against executry funds alone, then malice and want of probable cause must be proved upon authority of Brodie v. Young, 13 D. 737. The Sheriff was wrong in holding that malice of Mackie senior attached to Mackie junior. In any case ambiguity in a schedule of arrestment was ground for very small damages.

Argued for Wilson—This is really a case of arrestment without warrant. There was therefore no need to prove malice and want of probable cause. The action had been treated by parties all along as one against the firm, so that Mackie junior was in any view liable.

Authorities cited— Brodie v. Young, Feb. 19, 1851, 13 D. 737; Meikle v. Sneddon, March 5, 1862, 24 D. 720.

At advising.