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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Naught v Hunter [1835] CA 13_400 (5 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0400.html Cite as: [1835] CA 13_400 |
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Page: 400↓
Subject_Process—Wakening.—
A summary petition is an incompetent mode of wakening a process, even though of a summary nature.
On the 30th of April, 1832, William Hunter, straw-hat maker in Glasgow, presented a petition to the Sheriff of Lanarkshire, entitled “Petition of Wakening,” setting forth that he had used a sequestration against his tenant, James M'Naught, on 16th October, 1829; that, on 23d October, the effects had been carried off by Mrs M'Naught and her husband, in breach of sequestration; that, on 30th October, the petitioner had presented a petition “for authority to let the said dwelling-house to another tenant, for the remainder of the then current year, and for warrant to apprehend and imprison the said James M'Naught and Mrs M'Naught, until payment of, or security were found for, the said rent and expenses, or till restitution of the whole of the sequestrated articles. And, therefore, praying that it might please your Lordship to consider the said petition, and to grant warrant to the petitioner, authorizing him to let the foresaid dwelling-house, for the remainder of the said then current year, to such tenant, and at such rent as he should be able to procure therefor, reserving to the petitioner his claim and action against the said James M'Naught for any shortcoming which might arise of the said rent, and his claim, right, and interest, under the sequestration, and to the effects, as accords. Also, forthwith to grant warrant to officers of Court to apprehend the persons of the said James M'Naught and Mrs M'Naught, and to bring them and each of them before you for examination, upon the matters set forth in the said petition, and upon their, or any of the said defenders admitting, or the petitioners proving, the facts therein stated, as to the abstraction of the said sequestrated effects, to grant warrant for imprisoning such defenders within the tolbooth of Glasgow, or any other of his Majesty's jails, therein to be detained, until they should restore to the said dwelling-house the whole of the furniture, goods, and effects abstracted therefrom, as above-mentioned, or until they made payment to the petitioner of the aforesaid rent and expenses, or found sufficient security, acted in your Lordship's court-books, for the payment of the same, and to find the defenders liable to the petitioner in full expenses.”
The petitioner then narrated, that several steps of procedure took place, including a warrant to let the house, and a warrant to apprehend the parties for examination; since which time the process had lain over for year and day, and was asleep; and he prayed the Sheriff “to appoint intimation hereof, and of your deliverance to follow hereon, to be made by service to the said persons, defenders, above-named and designed, and upon resuming consideration of the premises, with or without answers, to waken the foresaid process, and justice administer therein, until the end and conclusion thereof.”
The Sheriff granted warrant of service, and this being executed, and no answers returned, the Sheriff,“in respect that no answers have been lodged to the petition of wakening by James M'Naught and Mrs M'Naught,
Mrs M'Naught was brought before the Sheriff, and admitted a breach of sequestration, in consequence of which she was incarcerated.
She and her husband then presented a bill of suspension and liberation, pleading, inter alia, that a summary petition was an incompetent mode of wakening a sleeping process, even though such process had originally been of a summary nature; l and that if the petition in October 1829 had not been effectually wakened, the incarceration had been irregular, as there was no prayer in the petition of wakening for any warrant to incarcerate, or for any proceeding being had except through the medium of wakening the sleeping process, and administering justice therein.
Hunter answered, 1. That by the immemorial practice of the courts of Glasgow, a summary petition was a competent form of wakening a summary process; but, 2. That, at all events, the warrant of apprehension for examination, which was granted in the original process, being a criminal warrant, did not sleep; and that the Sheriff had of new granted warrant of apprehension for examination, which it was competent for him to do, and to follow up as he had done.
At passing the bill, the Lord Ordinary (Moncreiff) issued the subjoined note. *
_________________ Footnote _________________
1 Robertson, July 8, 1834 (ante, XII. 893).
* “The Lord Ordinary is of opinion that the various grounds of suspension which are derived from the complainer's situation, as a married woman, and the want of the concourse of the public prosecutor, are not well founded, though some of the points involved might admit of farther discussion. The breach of sequestration admitted to have been committed by the direct act of the complainer was a contempt of Court, for which she, as the actor, might answer in her own person, and which the Sheriff had clear power to redress at the instance of the private party; but the ground on which the Lord Ordinary finds it his duty to pass the bill, is, that he is strongly inclined to think that the process was not legally wakened, when the judgment was pronounced. He has particularly examined the petition, by which that object was attempted to be accomplished, and it contains no conclusion by which it could possibly stand as a substantive application for the contempt or breach of sequestration, praying merely to waken the foresaid process and justice administer therein, until the end and conclusion thereof. But the Lord Ordinary thinks that it was not competent to waken the process of sequestration, or the application for breach of it, by a summary petition, and that summons of wakening was necessary. It may seem at first view plausible to say, that as the process originated by summary petition, it may be wakened in the same manner. But this is fallacious. A summons of wakening is a substantive process of its own nature, and if the pursuer of the summary process will let it fall asleep, there is no reason why he should have any privilege in wakening it, and there can be no competent form for doing so, but the known and recognised form of a summons of wakening. The respondent says, that it is the practice in Glasgow to waken summary actions by summary petition. Where there is consent or no objection, there may be a practice of taking the easiest course. But otherwise, if the fact were so stated, the Lord Ordinary would consider it as a local error. He thinks the principle against it, and having enquired at the Sheriff-clerk's office in Edinburgh, he is assured that the uniform practice is to require a summons of wakening. He thinks the point of some importance. “If the process was not properly wakened, the warrant for breach of sequestration cannot stand.”
Under the expede letters, the Lord Ordinary “found that it was irregular and incompetent to waken the process before the Sheriff by a summary application; therefore, suspended the letters and decerned, and found the suspender entitled to expenses.”
The charger reclaimed.
Solicitors: J. Cullen, W.S— R. Kennedy, W.S—Agents.
