Scottish Court of Session Decisions

On 29th July 1886 J. Gow & Sons, 181 Trongate, Glasgow, raised an action in the Small-Debt Court at Glasgow against “William Cruickshanks, compositor, 78 Waddell Street, Glasgow,” for the price of furniture alleged to have been supplied to him, and obtained decree in absence. On 17th August “William Cruickshanks” was charged personally under this decree, and his goods and furniture were poinded. On 18th August “William Vincent Cruickshank, 78 Waddell Street, Glasgow, brought an action in the Sheriff Court at Glasgow against J. Gow & Sons, concluding ( first to have the defenders interdicted from selling his furniture, and ( second) for £25 as damages.

The complainer stated that on 13th July 1886, while he was confined to the house by illness, the defenders sent a messenger to him for payment of an alleged account; that he told the messenger that he had never bought any goods from the defenders, and owed them no account, and was then informed that the defenders had employed an officer of court to recover their account; that his wife called on the officer and explained that he owed the defenders nothing, and was promised that the matter would be inquired into and a letter of apology sent her for her trouble; that when the summons was served he sent a letter to the officer whose name was on the summons, saying that he had received it, but that he knew nothing of the alleged debt; that notwithstanding, the defenders, without inquiry, proceeded with their action, and took decree against the defender named in the summons, and thereafter wrongfully executed the poinding complained of. He further averred—“The said decree is not ex facie regular. The summons bears to be in name of ‘William Cruickshanks, 78 Waddell Street, while the relative account thereto annexed is in name of the same person at 70 Waddell Street. The pursuer avers that there was formerly a William Cruickshank or Cruickshanks at 70 Waddell Street, and he believes that the latter, who was a tailor, must be the debtor of the defenders.” He further stated that he had lived seven years at 78 Waddell Street, and had never dealt with the defenders or received any account from them until that rendered with the summons, and that his credit and feelings had been injured by the publication of the decree in the local newspapers.

The defenders admitted that the summons was against “William Cruickshanks.” They stated that their decree was against the pursuer, that it was obtained on 5th August, and that he was charged on it on 6th August.

They pleaded, inter alia—“(3) The pursuer not having taken the usual means of having the decree reviewed, he is not entitled to have the same set aside now, as the judgment has become final, and is not open to review.”

The pursuer, in obedience to an interlocutor of the Sheriff-Substitute, consigned the sum of £12, being the amount contained in the decree.

On 27th August 1886 the Sheriff-Substitute ( Spens) sustained the third plea-in-law stated for the defenders, and assoilzied them.

“ Note.—It seems to me that unless the pursuer got an express undertaking from the defenders to withdraw the action he ought to have appeared in Court to state that the goods were not supplied to him. Rightly or wrongly by serving the action upon him the defenders had indicated that he was the party to whom they were looking for payment. But even assuming that he had grounds for believing that the defenders had departed from their action, what excuse can be made for not seeing to the case being sisted when he was charged upon the decree in absence I have therefore come to the conclusion that, assuming the pursuers' story to be all true, he has lost his remedy by not taking the ordinary means of bringing up the decree in absence for review.”

On appeal the Sheriff ( BERRY) on 12 th July 1887 adhered.

The complainer appealed, and argued that the case was ruled by the case of Brown v. Rodger, December 13, 1884, 12 R. 340. There a mistake in the defender's name led to a suspension of the proceedings, and the Court refused to allow proof of an averment that the suspender had been personally cited and charged on the decree— Spalding v. Valentine, July 4, 1883, 10 R. 1092.

Argued for the respondents—The decree was against the pursuer. The mistake—Cruickshanks for Cruickshank—was trifling, and was no excuse for the appellant not defending the action. If the defence was good on the merits it should have been stated. This was an attempt to get the case re-heard. The only way to do that was under the Small Debt Act 1837 (1 Vict. c. 41), sec. 16.

At advising—