BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morrison v Cuthbert [1835] CA 13_772 (16 May 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0772.html Cite as: [1835] CA 13_772 |
||
[New search] [Help]
Page: 772↓
Subject_Jurisdiction—sheriff.—
Question, 1. Whether an application to a sheriff, alleging a fraudulent abstraction of goods, and praying for imprisonment till restitution, be competent? and 2. Whether, under such petition, the sheriff could give decree for restitution, whereon letters of horning might proceed.
In September last the charger Cuthbert, carrier in Glasgow, presented, with concurrence of the procurator-fiscal, a petition to the sheriff of Lanarkshire, setting forth that the suspender Morrison had, by false and fraudulent representations, obtained possession of a parcel from ltis quarters in his absence, and concluding with the prayer, “May it therefore please your Lordship, upon considering what is before stated, to grant warrant to officers of court to apprehend the said Peter Morrison, and to bring him before you for examination, and, upon his admitting, or the private petitioner proving, the facts before stated, grant warrant for imprisoning the said Peter Morrison, until he shall deliver up to the private petitioner the foresaid parcel of cloth lappets obtained by him under the false and fraudulent pretence before mentioned—find the said Peter Morrison liable in the expense of this application and all subsequent and necessary procedure, and do farther, or otherwise, in the premises as to your Lordship shall seem just,” &c.
The sheriff immediately granted warrant to cite Morrison on an induciæ of twelve hours to compear for examination, and he was accordingly cited, but without any copy of the petition being served upon him. Having undergone an examination, the sheriff, after admitting an amendment of the petition with reference to the description of the parcel, but without appointing any answers by the respondent, allowed a proof. On advising the proof he pronounced the following interlocutor:—“Finds it proved, that a bag or parcel, containing goods manufactured for the defender, was sent to Glasgow from Ayr, under charge of the pursuer, on 27th August last, by Hugh Kennedy, agent in Ayr; finds that the defender ordered and caused said bag to be taken to his own premises on 29th August last; finds no proof that the said bag bore the address of the defender, or that he had authority from said Hugh Kennedy, or those to whom it was addressed, for taking possession; finds that the pursuer is entitled to interim custody of the bag, for his own and Kennedy's behoof, subject to the store-rent due to Barclay and Skirving for the carriage from Ayr to Glasgow, and to the hypothec of Hugh Kennedy for the account due in relation to the contents; ordains the bag to be delivered to the pursuer accordingly, and finds the defender liable in expenses.”
In virtue of this decree Cuthbert obtained letters of horning under the
1. That the petition contained no prayer for delivery of the goods which alone had been decerned for, and that the only specific prayer in it, viz. for imprisonment till delivery, was incompetent, inasmuch as the sheriff could not grant warrant of imprisonment even ad factum praestandum in a matter civil, 1 which the charger must necessarily hold this to be, having proceeded by letters of horning under the signet; and,
2. That the proceedings were irregular, in so far as he had not a copy of the petition served on him, and as judgment was pronounced not only without a record having been made up, but without his being allowed to answer the petition.
To this it was answered—
1. The prayer was sufficiently broad to warrant the decree for delivery, and where fraudulent abstraction is alleged, it is perfectly competent to pray for warrant of imprisonment, and it is competent for the sheriff to grant it in order to compel immediate restitution. 2
2. The nature of the case warranted the summary mode of procedure adopted by the sheriff, which is also sanctioned by the act of sederunt, 1828; and,
3. At all events the bill should not be passed without caution, particularly under the circumstances on the merits which establish the charge made in the petition.
The Lord Ordinary passed the bill on juratory caution, adding the subjoined note. *
_________________ Footnote _________________
1 Murray v. Bisset, May 15, 1810 (F.C.); Haig, June 20, 1823 (ante, II. 412).
2 Walker v. Innes, Nov. 21, 1822 (F.C.)
* “The Lord Ordinary has fully considered the proceedings and proof in the inferior court. But, whatever may be his opinion as to the state of the case, in regard to the fraudulent practice alleged against the complainer, he cannot refuse a bill of suspension of a charge on a decree, where his opinion at present is, that the whole proceeding, from first to last, was incompetent: Nor does he think that he can do so, even though ordinary caution is not offered.
“The petition presented, with concourse of the procurator-fiscal, sets forth the fact of obtaining possession of the goods on a false pretence, and it prays, 1st, For warrant to apprehend the petitioner for examination; and, 2d, For warrant, after proof, to Imprison the said Peter Morrison till he shall deliver up the goods; 3d, For expenses; and, 4tb, To do further, or otherwise, as the Sheriff should think just.
“The Lord Ordinary did observe, in reading the bill, that, if the complainer held the process to be criminal, there might be ground for thinking that the suspension belonged to the Justiciary. But the answer to this is, that, whatever might be thought of the nature of the application, it has not been so treated. The decree is of a civil nature, and the complainer is charged on letters of horning. The charger, therefore, cannot take this objection; and, if he says that the process was criminal, the incompetency of the proceeding would only be the clearer.
“Now, there can be no doubt, after the judgment and very pointed opinion of the Lord President, in the case of Murray v. Bisset, May 15, 1810, followed by the case of Haig, June 20, 1823, that it was altogether incompetent to ask the sheriff to grant warrant of imprisonment ad factum præstandum; whether the process was civil or criminal, that was incompetent. But the petition contained no other substantive prayer; and the question seems to the Lord Ordinary to be, Whether, under that, and with a view to explicate it, the sheriff could competently take the proceeding which he did, or whether he could pronounce the decree charged on? No doubt the sheriff granted no warrant of imprisonment, but the question is, Whether the petition on which he proceeded, which asked nothing else specifically, was a legal ground for the proceeding and decree?
“There is, indeed, a sweeping conclusion, to do farther or otherwise in the premises. But the Lord Ordinary cannot think that this relieved the difficulty. It would be very dangerous, in his opinion, so to hold. It was evidently not intended for such a purpose. But if the only specific conclusion was incompetent, would a petition which prayed for nothing at all have formed a process in which these proceedings could have taken place? The Lord Ordinary thinks not. The sheriff seems to have interpreted the prayer for imprisonment as implying a demand for a decree ordaining delivery. But the Lord Ordinary cannot see ground for such an implication in the writ which is the foundation of the process, and he thinks it the less admissible in regard to a complaint with concourse of the procurator-fiscal which did contemplate a very summary proceeding.
“There are other things in this process which the Lord Ordinary must think irregular. It was, in every view, right to cite the complainer Instead of apprehending him, as the petitioner asked; and, if a competent prayer had been put in, it would also have been perfectly warrantable to cite on short induciæ. But the Lord Ordinary does think that a copy of the complaint should have been served; and the respondent's construction of the Act of Sederunt,—Ans., p. 36,—is entirely erroneous. The words,' if he see cause,' refer to the alternative of simply ordering answers, or appointing service and answers on short indueiæ;.
“If the cause was to be treated as a civil process, Mr Kennedy appears to have been an incompetent witness, as being really the party interested. But the complainer having expressly given up the objection, cannot revive it. Whether it was necessary to close a record may be doubtful. But there certainly ought to have been answers to the petition, before proof was entered on.
“The great cause of irregularity seems to have been, that the case was treated, in the first instance, somewhat like a criminal proceeding, and at last was considered and disposed of as purely civil.
“The Lord Ordinary will say nothing on the merits of the proof. It is certainly with reluctance that he passes the bill. But he feels himself constrained to it, and considers the correctness and regularity of such summary proceedings of far wore importance than the result of any particular case.”
Cuthbert reclaimed.
The Court accordingly adhered.
Solicitors: John Cullen, W.S.— Wotherspoon and Mack, W.S.—Agents.
