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Cite as: [1878] ScotLR 15_584, [1878] SLR 15_584

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SCOTTISH_SLR_Court_of_Session

Page: 584↓

Court of Session Inner House Second Division.

Saturday, June 1. 1878.

[ Lord Craighill, Ordinary.

15 SLR 584

Watson

v.

M'Culloch.

Subject_1Issues
Subject_2Landlord's Sequestration for Rent
Subject_3“Wrongfully”
Subject_4“Maliciously.”
Facts:

In an action of damages for illegal sequestration for rent, which had followed upon a warrant contained in a small-debt summons, the Court held that it was not necessary to prove malice and want of probable cause, and that the word “wrongfully” should alone be inserted in the issue.

Observations on the use of the words “maliciously, ” “wrongously, ” &c., in such cases.

Headnote:

This was an action for damages for wrongous sequestration by a landlord for house-rent, raised by Robert Watson, writer, Largs, against Robert M'Culloch, spirit merchant, Glasgow. It was averred that M'Culloch had taken out a small-debt summons of sequestration and sale before the Sheriff Court of Kilmarnock, and that he had in virtue of the warrant contained in the summons sequestrated the pursuer's effects in a house let by him to the pursuer, as to the payment of the rent for which disputes had arisen between them.

The Lord Ordinary ( Craighill) approved of the following issue for the trial of the cause:—“Whether, on or about the 16th day of November 1877, the defender wrongously and oppressively sequestrated the effects, or a portion thereof, belonging to the pursuer in the house occupied by him at Gogo Side, Largs, in security of the rent of said house for the half-year from Whitsunday to Martinmas 1877, to the loss, injury, and damage of the pursuer?”

The defender moved the Court to vary the issue by substituting the words “maliciously and without probable cause” for the words “wrongously and oppressively.”

Argued for him—This was a case of an ordinary legal remedy, like that of arrestment on the dependence, where it was settled that malice and want of probable cause must be put in issue. It was not a case where a special diligence or remedy was asked, to which the Court applied its mind before it granted it. In the Small-Debt Court the clerk was in the habit of granting a warrant of sequestration without any inquiry. That had happened here.

Authorities— Wolthekker v. Northern Agricultural Co., Dec. 20, 1862, 1 Macph. 211; Kennedy v. Police Commissioners of Fort-William, Dec. 12, 1877, 15 Scot. Law Rep. 191.

At advising—

Judgment:

Lord Ormidale—I think it extremely desirable in the matter of issues that we should adhere to the established form, for this obvious reason, that by so doing we prevent much litigation for the future. It appears to me that this case is ruled by the principles laid down in Wolthekker v. Northern Agricultural Co. ( 1 Macph. 211), and in Kennedy v. The Police Commissioners of Fort-William ( 15 Scot. Law Rep. 191). Landlords’ sequestrations are expressely referred to by Lord President Inglis in the former case as falling under the category of cases in which the applicant must be answerable for the truth of the statement on which he obtains his warrant. I think it unnecessary and undesirable to say more than that it is a settled rule that in actions of damages for wrongful sequestration it is not necessary for the pursuer to establish malice and want of probable cause.

Lord Gifford—I am of the same opinion. In the case of arrestment on the dependence of an action it is quite fixed that malice and want of probable cause must be inserted in the issue; and there is certainly great force in the argument submitted to us, that the same rule should be applied to the present case, where the warrant of sequestration seems to be issued with as little consideration and as much as a matter of course as a warrant of arrestment on the dependence. But I am not disposed to extend the rule laid down in Wolthekker and similar cases beyond what has been actually decided.

I think that the present case will be perfectly well tried with the word “wrongfully” only in the issue.

Lord Young—(who sat in this Division in the absence of the Lord Justice-Clerk)—I concur. I think that the case will be very well tried with the word “wrongfully, ” which I prefer to “wrongously, ” as being more correct and more easily pronounced. I do not regard “oppressively” as a convenient term, for although it is employed in some statutes, it is a very difficult word to define. The same observation as to difficulty of definition applies also to “maliciously, ” which is moreover ambiguous and misleading. We borrowed the word from the English law, and in England the attempt is now being made, by a bill introduced by the Government into Parliament, to eliminate the term from criminal procedure on account of this very ambiguity. A jury will always fancy that the idea of some spite is contained in the word, and accordingly every explanation has to be given in order to make it clear to their minds that the legal meaning of the word is not the same as the popular one.

“Wrongfully, ” the old Saxon word, I prefer. Its meaning is “off the straight, ” wrong, or “wrung, ” which I believe to be the etymology. Whether the one word or the other be used here will be all the same as regards the verdict of the jury, and I think “wrongfully” will entirely try the questions raised.

The Court therefore ordered the word “wrongfully” to be inserted in the issue instead of “wrongously and oppressively.”

Counsel:

Counsel for Pursuer (Respondent)— Mair. Agent— W. Officer, S.S.C.

Counsel for Defender (Reclaimer)— Balfour— Lorimer. Agents— Ronald & Ritchie, S.S.C.
1878