Scottish Court of Session Decisions

On 7th October 1898 there was signeted a summons by James Riach, 20 M'Lean

Page: 521↓

Street, Plantation, Govan, against James W. Wallace, Practitioner in Medicine, 71 South Cumberland Street, Glasgow, in an action for the reduction of “a pretended decree or interlocutor bearing to have been pronounced in the Sheriff Court of Lanarkshire at Glasgow upon the 8th day of September 1898, in an action purporting to have been brought under The Debts Recovery (Scotland) Act 1867, by the present defender against the present pursuer, for recovery of the sum of £20, 17s. 6d. sterling.”

The pursuer averred that in or about August 1898 the defender raised an action in the Debts Recovery Court at Glasgow against him for £20, 17s. 6d.; that the sum sued for was not due by him to the defender; that he instructed his wife to procure a qualified law-agent to appear for him at the diet of compearance and defend the action; that she, instead of instructing a law-agent, appeared in Court herself and made a statement to the Sheriff; that she had no authority to appear for him, and was not entitled to do so under section 4 of the Debts Recovery Act, and the Sheriff had no right to allow her to appear and act; that notwithstanding a decree had been pronounced against him bearing to be a decree in foro instead of a decree in absence; that although it bore to be a decree in foro, the defender wrongly and maliciously, and contrary to the provisions of sections 9 and 11 of the Act, whereby such decrees were only to be extracted after eight days from their date, and contrary to the uniform practice of the Lanarkshire Sheriff Court, caused the decree to be extracted on 9th September and at once lodged an arrestment, proceeding on said extract in the hands of the pursuer's employers, and thereafter continued to use arrestments against the pursuer, and that the defender refused to withdraw them.

The pursuer pleaded—“(1) The pursuer is entitled to have the said pretended decree reduced in respect it bears to be a decree in foro, and yet was pronounced wrongfully and unwarrantably on the motion of the present defender, when the pursuer was neither present nor represented in Court. (2) The defender having wrongfully and maliciously craved and obtained extract of the said pretended decree before extract could have been properly granted in terms of the statute, and contrary to the uniform practice of the Sheriff Court at Glasgow, and having wrongfully and maliciously used arrestments thereupon, is liable in damages and expenses.”

The defender lodged preliminary defences and a statement of facts, in which he, inter alia, admitted that on 8th September 1898 the Sheriff-Substitute gave decree in an action at defender's instance for £20, 17s. 6d. against Francis Riach, 20 M'Lean Street, Plantation, Govan, at which diet a woman appeared representing herself to be the wife of Francis Riach. He averred that she did so with the consent of Francis Riach, and that the latter knew on the same day that she had done so, but he did not repudiate her conduct. The defender further denied that the decree in the debts recovery action at defender's instance against Francis Riach was not extractable until eight days from its date, and admitted that he refused to withdraw the arrestments used by him.

The defender pleaded, inter alia—“(1) No title to sue. (2) The defender not having taken decree against the pursuer, nor having used arrestments against him, should be assoilzied. (7) The pursuer is barred from insisting in the present action in respect that he committed to his wife the charge of attending to the defence of the action wherein was pronounced the decree brought under reduction, and that she defended the same;”

After the Lord Ordinary ( Kincairney) had on 15th November closed the record on the summons, preliminary defences and answers, and appointed the cause to be sent to the procedure roll, the pursuer lodged a minute asking to be allowed to amend the summons by deleting the word “James” in the name of the pursuer and substituting “Francis.” To this the defender objected and the Lord Ordinary on 25th January refused the motion of the pursuer and reserved the question of expenses.

The pursuer reclaimed, and argued—The law-agent in this case had sent instructions to counsel to raise an action in the name of “Francis” Riach. Counsel by a slip had substituted “James” for “Francis” in the draft summons. When the record came to be adjusted, the Lord Ordinary had been moved on behalf of the pursuer to substitute the correct name, but the defender objected and desired the motion to be made formally by a minute. When the minute of amendment was lodged the Lord Ordinary refused the motion. The amendment should be allowed. The mistake was purely a clerical one. The name in the decree sought to be reduced was “Francis,” and he was the only person residing at 20 M'Lean Street. From the defences it was quite clear that the defender was well aware of the identity of the pursuer.

Argued for defender—The Lord Ordinary's judgment was right, whether pronounced on a point of law or a matter of discretion. If the original summons were looked at, it was plain that the alteration of the name would be the introduction of a new pursuer. The proper course where a mistake had been made was to commence the action de novo under the correct name— Macallum, November 2, 1883, 11 R. 60; Anderson v. Harlowe, December 12, 1871, 10 Macph. 217.

At advising—