Scottish Court of Session Decisions

The Citation Amendment (Scotland) Act 1882 (45 and 46 Vict. cap. 77), provides:—Sec. 3—“From and after the commencement of this Act, in any civil action … any summons or warrant of citation of a person, whether as a party or witness, or warrant of service or judicial intimation, may be executed in Scotland by an enrolled law-agent, by sending to the known residence or place of business of the person upon whom such summons, warrant, or judicial intimation is to be served, or to his last known address, if it continues to be his legal domicile or proper place of citation, a registered letter by post, containing the copy of the summons or petition or other document required by law in the particular case to be served with the proper citation or notice subjoined thereto, or containing such other citation or notice as may be required in the circumstances, and such posting shall constitute a legal and valid citation, unless the person cited shall prove that such letter was not left or tendered at his known residence or place of business, or at his last known address if it continues to be his legal domicile or proper place of citation.”

Section 4, sub-sec. 5—“If delivery of the letter be not made because the address cannot be found, or because the house or place of business at the address is shut up, or because the letter-carrier is informed at the address that the person to whom the letter is addressed is not known there, or because the letter was refused, the letter shall be immediately returned through the Post-Office to the clerk of court, with the reason for the failure to deliver marked thereon, and the clerk shall make intimation to the party at whose instance the summons, warrant, or intimation was issued or obtained, and shall, where the order for service was made by a judge or magistrate, present the letter to the judge or magistrate from which the summons, warrant, or intimation was issued, and he may, if he shall think fit, order service of new, either according to the present law and practice or in the manner hereinbefore provided, and if need be substitute a new diet of appearance. Where the judge or magistrate is satisfied that the letter has been tendered at the proper address of the party or witness and refused, he may, in the case of a witness, without waiting for the diet of appearance, issue second diligence to secure his attendance, and in the case of a party hold the tender equal to a good citation.”

In this action of maills and duties the summons had been served under the provisions of the Citation Amendment (Scotland) Act by registered letter. The letter had been returned with the endorsement “Refused, A. G.,” and decree was sought in the undefended roll.

The Lord Ordinary issued the following interlocutor:—“The Lord Ordinary not being satisfied that the registered letter was tendered at the proper address of the defender Thomas Crawford, appoints service of the summons of new, with a copy of this interlocutor, to be made upon the said defendant, according to the law and practice in existence at the date of the passing of the Act 45 and 46 Vict. cap. 77, and allows him to enter appearance within eight days after service.”

“ Note.—I cannot grant decree in absence in this case, because, in the words of see. 4, sub-sec. 5, of the Act 45 and 46 Vict. cap. 77, I am not satisfied that the registered letter has been tendered at the proper address of the defender and refused by him. The evidence that has been produced to me is simply a marking on the back of the registered letter in these terms, “Refused, A. G.” It does not appear from the registered letter itself who the person was that made this notandum, but one may conclude that it was the post-runner. Assuming this to be the case (which in such a matter as the execution of a summons is assuming a good deal) the question still remains who it was that refused to receive the letter. Was it the defender himself, or his wife, or a servant? And in the event of it having been any other person than the defender himself, the question would necessarily arise whether such a refusal must be taken as a refusal by the defender. It is quite true that by the statute of 1540, cap. 75, a messenger-at-arms is authorised, in the event of not finding the defender personally, to leave the copy of the summons with a servant, and if the servant refuse to take it, the messenger is then authorised to affix the copy of the summons to the gate or door of the defender's house—now in modern practice by sticking the copy summons into the lockhole. But this is entirely statutory, and there is no provision in the Act of 1882 to the effect that the delivery of a registered letter to a servant would be held delivery to the defender, or that the refusal to receive the summons made by a servant is to be taken as the act of the defender. It is obvious that further legislation is needed if so wide a construction is to be given to the recent statute. And besides providing for the act of the servant being held to be that of the master, in the case, but only in the case, where the master himself could not be found, it would be necessary also to enact that the post-runner shall certify (as a messenger is obliged to do) to whom he tendered the letter, and by whom it was refused, and

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for what reason, if any. I must therefore order this summons to be of new served, and that in the old way by a messenger, and I will appoint a new diet of appearance; and I will do this in such a way as to render it unnecessary to send the case through the calling lists again.”