Scottish Court of Session Decisions

On September 30, 1878, Andrew Tully raised a small-debt action in the Sheriff Court of Midlothian against Mrs Lennon and her son John Aloysius Lennon for payment of a debt due to him by the latter. The sheriff-officer whose duty it was to serve the summons could not get access into Lennon's house, and left a copy of it within the lockhole of the door, and further sent a registered letter by post containing a copy of it. A certificate from the postmaster acknowledging receipt of this letter, dated October 4 was produced. The defender did not appear in Court, and decree in absence passed against him on October 9, 1878. On November 5 he was charged upon the decree in absence in the same manner as the summons had been served, but no notice was taken by him of any of the proceedings. A poinding was then executed of his effects, and a schedule of poinding of the articles was sent by registered letter, and in February 1879 the goods were sold.

Mrs Lennon and her son then raised an action in the Court of Session, in which they concluded, inter alia, that the small-debt decree should be reduced on the ground that the summons had not been “legally and validly” served, on the grounds stated in the following interlocutor and note of the Lord Ordinary ( Craighill):—

“ Edinburgh, 30 th June 1879.—The Lord Ordinary having heard parties' procurators on the closed record, and more particularly on the first, second, and third of the pleas-in-law for the defender, and having the debate and whole process, Finds as matter of fact that the pursuer John Aloysius Lennon, in virtue of the warrant contained

Page: 741↓

in the small-debt summons, was cited to compear in the Small Debt Court of the Sheriff of Midlothian at Edinburgh on 9th October 1878 (1) by lockhole service of a copy of said summons, effected on 30th September 1878, and (2) by the posting on 4th of said month of October of a registered letter containing another copy of said summons: Finds as matter of law that said summons was not legally or validly served according to the sound construction of the 1st Vict. c. 41, sec. 3, and the 34th and 35th Vict. c. 42, secs. 2 and 3, but this without prejudice to any plea that may be available to the defender should it appear that by said service, such as it was, or otherwise the said pursuer came to the knowledge of the raising of said summons before decree in absence thereon was pronounced: And before further answer allows to both parties a proof of their respective averments, and to each a conjunct probation—this proof to proceed before the Lord Ordinary on a day to be afterwards fixed; reserving meantime all questions of expenses.

Note.—(1) The Lord Ordinary was anxious, if he could, to dispose of the reductive conclusions of the summons upon the closed record, as that would have saved time, trouble, and expense, and as the grounds of challenge appeared to be rather technical than substantial; but after he came to the consideration of the question which has been dealt with in the foregoing interlocutor, he found that this could not be accomplished. The small—debt summons not having been ‘legally or validly’ served, much, if not everything, must come to depend upon the pursuer's knowledge of the institution of that action, and as to this proof is indispensable, because parties are at issue upon the facts of the case.

(2) The following are the steps by which the Lord Ordinary has reached the conclusion to which effect has been given in the foregoing interlocutor:—In the first place, the 1st Vict. c. 41, sec. 3, enacts that the diet of compearance in a small-debt action shall not be sooner than upon the sixth day after citation. In the second place, lockhole service, which till 34 and 35 Vict. c. 42, was passed, had been a legal citation, was by section 2 of that Act declared not to be legal or valid. In the third place, though lockhole service is now neither legal nor valid—that is to say, is per se insufficient—it forms part of that composite service introduced by section 3 of the last-mentioned statute, which enacts that ‘where an officer of any Small-Debt Court is satisfied that the defender named in any summons, complaint, decree, and warrant, or other order of such Small-Debt Court, or writ following upon such summons or complaint, is refusing access or concealing himself to avoid citation or service, or has within a period of forty days removed from the house or premises occupied by him, his place of dwelling for the time not being known, it shall be lawful for such officer, after he has affixed to the gate or door of such house or premises, or left in the hands of an inmate there, the said summons, complaint, decree, and warrant, or other writ, to send to the address which, after diligent inquiry, he may deem most likely to find the defender, or to his last known address, a registered letter by post, containing a copy of such summons, complaint, decree, and warrant, or other order or writ’—it being further enacted that ‘the affixing or leaving of such summons, oomplaint, decree, and warrant, or other order or writ, and the posting of such intimation, shall constitute a legal and valid citation or service.’ In the last place, the warrant, and the only warrant, for this composite service is the warrant contained in the small-debt summons, which as regards inducice must be conformable to section 3 of 1 Vict. c. 41; consequently both portions of the service must, as the Lord Ordinary thinks, be performed in such time as to afford an interval between the service and the specified diet of Court not shorter than the inducice specified in sec. 3 of 1 Vict. c. 41.”

The defender reclaimed, and argued that the Court had no jurisdiction, and could not deal with the question whether the summons had been validly served or not. By the Small-Debt Act (1 Vict. c. 41), sec. 30, it was enacted “that no decree given by any Sheriff in any cause or prosecution decided under the authority of this Act shall be subject to reduction, advocation, suspension, or appeal, or any other form of review, or stay of execution, other than that provided by this Act, either on account of any omission or irregularity or informality in the citation or proceedings, or on the merits, or on any other ground or reason whatever.” Section 31 of the same Act enacted—“That it shall be competent for any person conceiving himself aggrieved by any decree given by any Sheriff in any cause or prosecution raised under the authority of this Act to bring the case by appeal before the next Circuit Court of Justiciary, or when there are no Circuit Courts before the High Court of Justiciary in Edinburgh,” &c. The pursuers here had brought no such appeal, and therefore the Court should dismiss the action.

Authorities— Crombiev. M'Ewan, Jan. 17,1861, 23 D. 333; Miller v. Henderson, Feb. 2, 1850, 12 D. 650; Graham v. M'Kay, Feb. 25, 1845, 7 D. 515; Murchie v. Fairbaim, May 22, 1863,1 Macph. 800.

The respondents argued that the case here proceeded on no citation, and that neither the summons nor the decree in absence having been lawfully brought to their knowledge they could not bring an appeal before the High Court of Justiciary, as by the “Heritable Jurisdiction Abolition Act” the time for taking such an appeal was limited to ten days after the decree. Besides, unless the provisions of the Small-Debt Act were all complied with, decrees under it were not protected, and so could be dealt with as was proposed in this case.

At advising—