Scottish Court of Session Decisions

In this case (decided November 17,1886, reported supra, p. 69), which was a petition for interdict brought in the Sheriff Court of Inverness, Elgin, and Nairn at Portree, the Auditor of Court in taxing the account of expenses of the pursuers, who were successful in the action, disallowed an item of £31, 14s. 6d. charged under date 27th November 1884 for service on the defenders, by a Sheriff officer from Inverness, of the petition and deliverance thereon granting interim interdict. Of this sum he only allowed a sum of £1, 18s. 10d. as the fees for service by registered letter in terms of the Citation Amendment (Scotland) Act 1882 (45 and 46 Vict. c. 77), which provides as follows—“Section 3. In any civil action or proceeding

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in any court, or before any person or body of persons having by law power to cite parties or witnesses, 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 any officer of the court from which such summons, warrant, or judicial intimation was issued … 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. The following provisions shall apply to service by registered letter … (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 address is not within a postal delivery district, and the letter is not called for within twenty-four hours after its receipt at the post-office of the place to which it is addressed, or for any other reason, 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 a judge or magistrate of the court 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 or practice, or in the manner hereinbefore provided, and if need be substitute a new diet of appearance.”

Counsel for the pursuer objected—The provisions of the Act of Parliament were unworkable in this particular case. This was an action for interdict, and therefore required the utmost diligence and despatch. There was no postal delivery within the district where the summons had to be served. It was scarcely imaginable, then, that the crofters would come to the Post-Office to fetch their summonses. In these circumstances the only other alternative had to be adopted, and a Sheriff's officer was sent from Inverness, this being rendered necessary as all the Sheriff's officers in Skye had resigned their commissions. The pursuer, then, was entitled to the full expenses of service charged.

Counsel for the defenders replied—There was nothing in the argument that there was no postal delivery within the district. This was applicable in very many parts of Scotland. It could not be assumed that not one of forty crofters would call at the Post-Office for letters. The Act made provision where letters containing summonses were not called for in sub-section 5 of section 4. In respect, then, that the pursuer had resorted to the more expensive method of service, and one not sanctioned by the Citation Amendment Act, the Auditor was right in only allowing the expense of the method sanctioned by the Act.

At advising—