Scottish Court of Session Decisions

Thomas Marshall junior, produce importer and commission merchant, 3 Regent Quay, and residing at 147 Union Street, Aberdeen, brought an action in the Sheriff Court at Aberdeen, against “The Caledonian Railway Company incorporated by Acts of Parliament, and carrying on business and having a place of business in the City of Aberdeen.”

The pursuer craved decree for the sum of £1500 as damages for injuries sustained by him in a railway accident while he was travelling as a passenger from Glasgow to Aberdeen by the defenders' line of railway. The petition was served upon the defenders at their place of business in Aberdeen. They entered appearance to defend the action, and lodged defences, in which they admitted that they carried on business and had an office at Aberdeen, subject to the explanation that the said office was not their principal office.

The defenders pleaded, inter alia—“(1) No process, in respect that the defenders have not been competently cited at their principal office.”

The defenders' head office is in Glasgow.

The Railways Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. c. 33) enacts as follows:—Sec. 130—“And be it enacted that any summons or notice, or any writ or other proceeding at law requiring to be served upon the company may be served by the same being left at or transmitted through the post directed to the principal office of the company, or one of their principal offices where there shall be more than one, or being given personally to the secretary, or in case there be no secretary, then by being given to any one director of the company.”

Section 137 of the Companies Clauses Consolidation (Scotland) Act 1845 (8 and 9 Vict. c. 17) is substantially identical in its terms.

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The Sheriff Courts (Scotland) Act 1876 (39 and 40 Vict. c. 70), enacts as follows Sec. 12—“With regard to the service of writ issuing from the Sheriff Courts the following provisions shall have effect—that is to say, … (2) A party who appears shall not be permitted to state any objection to the regularity of the execution or service as against himself of the petition by which he is convened.” Sec. 46—“A person carrying on a trade or business, and having a place of business within a county shall be subject to the jurisdiction of the sheriff thereof in any action notwithstanding that he has his domicile in another county, provided he shall be cited to appear in such action either personally or at his place of business; it shall, however, be in the power of the sheriff aforesaid, upon sufficient cause shown, to remit any such action to the court of the defender's domicile in another sheriffdom.”

On 5th February 1900 the Sheriff-Substitute ( Burnet) issued an interlocutor, whereby he repelled the first plea-in-law stated for the defenders and allowed a proof.

Note.—“In this case the defenders admit that they carry on business and have a place of business within this sheriffdom, and the execution of citation bears that they were cited to appear in this action by service upon them at that place of business in the ordinary manner. Having appeared in answer to the citation, they are precluded from stating any objection to its regularity (39 and 40 Vict. c. 70), sec. 12 (2). It is plain therefore, and was indeed conceded in argument for the defenders, that their plea of ‘no process’ cannot be sustained as stated. And the argument submitted on their behalf accordingly was that this Court had no jurisdiction, because the defenders had not been cited at their principal office or place of business. But sec. 46 of the Sheriff Court Act 1876 (39 and 40 Vict. c. 70) does not require the citation to be made at the principal place of business of a defender who carries on business within a sheriffdom, but only at the place where he does in point of fact carry on business within its territory. It no doubt authorises the Sheriff, upon sufficient cause shown, to remit an action originated by such service to the Court of the defender's domicile in another sheriffdom. And the defenders might have shown cause for giving effect to a plea of forum non conveniens in this way if they had chosen. But they have made no attempt to do so, and they do not even state upon record where their principal place of business or domicile is.”

The pursuer appealed for jury trial and lodged an issue for the trial of the cause.

Argued for the defenders and respondents—(1) The defenders had not been duly cited according to law. A railway company could only be cited at its principal office, or at one of its principal offices if it had more than one—Railways Clauses Consolidation (Scotland) Act 1845, sec. 130; Companies Clauses Consolidation (Scotland) Act 1845, sec. 137. Aberdeen was not the principal office or one of the principal offices of the Caledonian Railway Company. That company had only one principal office, viz., the head office in Glasgow. There was no other office in which any part of the general or controlling business of the company was carried on. What constituted an office a “principal office” was that in it either the whole or part of the general, controlling, and managing business of the undertaking as a whole was transacted. Difficulties might arise where a company conducted such business at more than one office, but these difficulties were absent here, because there was only one office where in the case of the Caledonian Railway Company that kind of business was transacted. It was the kind and not the amount of business which determined whether an office was a principal office or not. At Aberdeen, however great might be the amount of business transacted, it was in no way different in kind from the business which was transacted at every roadside station however small. The Act did not prescribe that the citation should be given at one of the principal stations of the company, but at one of the principal offices, and the importance of the station had no bearing upon the question. These views as to the meaning of the expression “principal office” had been given effect to in the English cases of Palmer v. Caledonian Railway Company [1892], 1 Q.B. 823; and Garton v. Great Western Railway Company (1858), 27 L.J., Q.B. 375. In the former of these cases it was held that Carlisle was not one of the principal offices of the Caledonian Railway Company. Carlisle occupied exactly the same position in the Caledonian system as Aberdeen, these two stations being the termini of the main line, and the same kind and amount of business was carried on in each of them. In Garton it was decided that Bristol was not one of the principal offices of the Great Western Railway Company although it was then one of the termini of that company's line. The case of Aberdeen Railway Company v. Ferrier, January 28, 1854, 16 D. 422, was a decision upon the question of jurisdiction. In Jack v. North British Railway Company, June 2, 1885, 12 R. 1029, it was decided that the Sheriff in terms of the Sheriff Courts (Scotland) Act 1876, sec. 46, had jurisdiction over a railway company which had a place of business or at least a principal place of business in the county. The defenders here did not dispute the jurisdiction of the Sheriff Court at Aberdeen. Their only objection was to the citation. If the case of Jack were to be considered as a decision upon the question of citation, then it was submitted that in that case the Court might, so far as appeared, have proceeded upon the view that the North British Railway Company's office at Glasgow was one of their “principal offices” in the sense indicated above. (2) The defenders were not barred from taking the present objection by having appeared in answer to the citation. The objection now stated was not an objection to the regularity of the citation. The defenders' submission was that here they had never

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been cited at all in the manner prescribed by the Railways Clauses Consolidation (Scotland) Act 1845, section 130. Where the objection was that there had been no citation at all, that was not merely an objection to the regularity of the citation, and section 12 (2) of the Sheriff Courts (Scotland) Act 1876 did not apply— M'Bey v. Knight, November 22, 1879, 7 R. 255, per Lord Ormidale at page 257. If the defenders had taken no notice of the citation and had then raised this question when the pursuer attempted to enforce his decree, they would have been met with the defence that their objection came too late, and that they ought to have appeared and defended the action — Cruickshank v. Gow & Sons, January 25, 1888, 15 R. 326.

Argued for the pursuer and appellant— This case was ruled by Jack v. North British Railway Company, cit., which decided that the North British Railway could be duly cited at their office in Glasgow, that being one of the principal places at which they carried on their business. The provisions of the Railways Clauses Consolidation (Scotland) Act 1845, section 130, and the Companies Clauses Consolidation (Scotland) Act 1845, section 137, had been superseded in so far as they were in conflict with the provisions of the Sheriff Courts (Scotland) Act 1876, section 46, and that section not only regulated the question of jurisdiction, but provided for the mode of citation. Apart from this the defenders were precluded from stating this defence by having appeared to defend the action— Sheriff Courts (Scotland) Act 1876, section 12 (2).