Clark v. Beattie and Others [1908] ScotLR 214 (02 December 1908)

Clark v. Beattie and Others [1908] ScotLR 214 (02 December 1908)

Where a decree is recalled for want of service, diligence executed under it is wrongous and the party who instructed the diligence is liable in damages; however, a sheriff officer acting on an ex facie regular decree is not liable unless he knew the decree was invalid.

Citation
[1908] ScotLR 214
Parties
Pursuer: Malcolm Clark; Defender/respondent: Andrew Beattie; Defender: Thomas Nisbet; Defender (cautioner for Nisbet): John Bennett; Defender (cautioner for Nisbet): Robert Hunter
Jurisdiction
Scotland
Judgment Date
02 December 1908
Procedural Posture
Civil (reparation/damages) / Appeal From Sheriff Substitute to Inner House, First Division
Outcome
Appeal allowed in part; interlocutor of Sheriff-Substitute recalled; action against Beattie to proceed; Nisbet and cautioners assoilzied (absolved).
Legal Topics
Wrongous Use of Diligence, Service of Process, Small Debt (scotland) Act 1837, Damages for Misuse of Diligence
Civil Procedure Tort/delict Debt Recovery Wrongous Use of Diligence Service of Process Small Debt (scotland) Act 1837 Damages for Misuse of Diligence

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Parties

Malcolm Clark

Pursuer

Andrew Beattie

Defender/respondent

Thomas Nisbet

Defender

John Bennett

Defender (cautioner for Nisbet)

Robert Hunter

Defender (cautioner for Nisbet)

Procedural Posture

Civil (reparation/damages) / Appeal From Sheriff Substitute to Inner House, First Division

Legal Issues

  1. 1 Whether diligence (arrestment) based on a decree later recalled is protected by section 30 of the Small Debt (Scotland) Act 1837
  2. 2 Whether damages lie against the party instructing diligence when decree is recalled for want of service
  3. 3 Whether a sheriff officer is liable for wrongous diligence when decree is ex facie regular

Ratio Decidendi

Where a decree is recalled for want of service, diligence executed under it is wrongous and the party who instructed the diligence is liable in damages; however, a sheriff officer acting on an ex facie regular decree is not liable unless he knew the decree was invalid.

Court Disposition

Appeal allowed in part; interlocutor of Sheriff-Substitute recalled; action against Beattie to proceed; Nisbet and cautioners assoilzied (absolved).

Orders

  • Interlocutor of 18th March 1908 recalled.
  • Thomas Nisbet and his cautioners assoilzied from the conclusions of the action.