Scottish Court of Session Decisions

Barbara Jane Brown, residing at 40 Lome Street, Leith Walk, Leith, presented in the Bill Chamber, against William Ritchie Rodger, law agent, Edinburgh, judicial factor on the estate of the deceased Mrs Marion Macfarlane or Morton, grocer, 219 Leith Walk, Leith, and also against John Watson, sheriff-officer, this note of suspension and interdict of a threatened sale on a poinding of her effects executed by Watson on the instructions of Rodger as judicial factor fore-said. The threatened sale, she averred, was for non-payment of £5, 9s. 11d., with 7s. 1d. of expenses, alleged to be due by a Miss Isabella Brown, 40 Lorne Street, Leith Walk, to the deceased Mrs Morton, and she not being Miss Isabella Brown, and never having passed by that name, or by any other name than Barbara Jane Brown, and not being due the debt in question, the poinding was wrongous and unwarrantable. She stated that she had had dealings with Mrs Morton under her own name, and had paid all accounts she was due to her.

Rodger lodged answers, in which he stated that the complainer was a customer of Mrs Morton; that on examining Mrs Morton's books on his appointment as judicial factor he found an outstanding account due by the complainer; that he called on her and asked her to settle it, and that she admitted the debt, and said she was unable to settle it then, but promised to make an arrangement, and that she failing to do so, he raised the small-debt action, on decree in absence in which the poinding proceeded. He further stated:—“It appeared on examining the business books that the first page of the defender's account is headed thus—‘Miss Isabella B. Brown, 40 Lorne Street,’ the word ‘Isabella’ being delete as shown in this article. The complainer did not know the deceased Mrs Morton's customers, and therefore thinking that the ‘B’ in the above heading stood for ‘Bella,’ made out the account sued on in name of Isabella Brown. The account is contained on, inter alia, three pages of the deceased Mrs Morton's ledger, the first of which pages is headed as above, the second being headed ‘Miss B. J. Brown, 40 Lorne Street’ (the initials of the name now stated by the complainer as her proper name), while the third page is headed ‘Miss Isabella Brown, 40 Lorne Street,’ and bears a reference back to the prior

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page. The complainer is the party referred to in the pages above mentioned and in the account sued on. The goods, payment for which is sought, were ordered by and delivered to her; the small-debt decree for the price is against her. The summons on which the decree follows proceeds against the complainer under the name of ‘Miss Isabella Brown;’ it was served at her dwelling-place, was received personally by her under said name without objection, and although she was thereby certiorated that unless she appeared in the Small Debt Court on 26th March 1884 she would be held as confessed, she failed to appear, and thus was held as confessed. Thereafter the complainer was charged under said decree on 28th March 1884 under pain of poinding. The execution bears, and it is the fact, that the charge was given to her personally. She did not apply for a re-hearing as she might have done, or take any of the steps competent under the Small Debt Act to set aside the decree. The complainer represented to the officer who delivered to her the said charge that she was the defender named and designed therein, and she knows quite well that the summons and charge were intended for her, and that the debt sought to be recovered is due by her. There is no other spinster or woman of the name of Brown at 40 Lorne Street but the complainer, and her allegations mean nothing more than that a misnomer has taken place, inasmuch as she has been summoned as Miss Isabella Brown instead of Miss Barbara Jane Brown. The summons is against Miss Brown, and the account is in the name of Miss Brown, and it does not matter that there is a mistake as to the Christian name, there being no. doubt as to the identity of the complainer.”

The complainer pleaded—“(1) The respondent having wrongfully poinded the effects and furniture of the complainer in manner libelled, she is entitled to obtain interdict against them as prayed. (2) The complainer not being ‘Miss Isabella Brown,’ is entitled to have the threatened sale interdicted, with expenses, but only against the sheriff-officer in the event of him entering appearance.”

The respondent pleaded—“(3) The complainer having been duly cited to the Small Debt Court, and having failed to attend, and having been personally charged on the decree following said citation, and having failed to avail herself of the competent remedy, cannot now by way of interdict challenge the validity of the decree which was pronounced against her, or the proceedings following thereon. (4) The complainer having failed to apply for a hearing and sist, or to take an appeal as provided by the Small Debt Act, is barred from objecting to the validity of the decree. (5) The proceedings following on said decree being ex facie regular, the interdict sought is incompetent. (6) The articles poinded being the property of the complainer, and being poinded for her lawful debt, after due and regular citation to the Small Debt Court, an interdict is incompetent to stay proceedings on said decree.”

The note was passed, and interim interdict granted. Thereafter the process was marked to Lord Fraser.

The Lord Ordinary ( Fraser) pronounced this interlocutor:—“Allows to the suspender and the compearing respondent William Ritchie Rodger a proof of their averments, the said respondent to lead in the proof, and to the said respondent a conjunct probation: Appoints the proof to proceed,” &c.

The complainer reclaimed, and argued—Proof should not be allowed, but interdict should be granted; the misnomer was fatal to the poinding.

The respondent replied — He should not be denied the right of proving the debt and doing diligence against his debtor by an objection so purely technical. The Court had overruled a precisely similar objection in the case of Spalding, July 4, 1883, 10 R. 1092.

At advising—