Scottish Court of Session Decisions

On July 31, 1873, the Sheriff-Substitute of Lanarkshire ( Dickson) granted interim interdict at the instance of James Henderson, engineer, Leith, against Walter Maclellan and others, iron merchants, Glasgow. The interdict was to remain in force until August 4, and on that day the Sheriff-Substitute ( Clark) pronounced the following interlocutor:—Having heard the procurator for the petitioner, no appearance being made for the respondents,—on the craving of the petitioner's procurator, Continues the interim interdict already granted till the future orders of Court, and appoints parties' procurators to be heard on the grounds of action and defence to-morrow, in chambers, at halfpast 12 o'clock afternoon. On September 3, 1873, the petitioner Henderson presented a petition and complaint, with concurrence of the procurator-fiscal, charging the respondents with various acts in breach of interdict during the month of August, subsequent to August 4.

The defender lodged the following minute of defence:—“(1) That the statements in the petition were irrelevant and insufficient to support the prayer thereof. (2) That the pretended interdict referred to in the petition was never served on, or otherwise intimated to, the defenders, at the petitioner's instance, prior to the service of the present complaint. (3) A denial of the statements in the petition; and explained, that the defenders were in entire ignorance of an interdict having been granted against them on 4th August last; that they had no intention of showing any disrespect to the orders of the Court; and that the interdict referred to having been now brought under their notice, they will pay respect thereto until the same be recalled.”,

The Sheriff-Substitute pronounced the following interlocutor:—

Glasgow, 29 th October 1873.—Having heard parties' procurators on and considered the closed record,—for the reasons stated in the note, finds that the petition does not set forth a relevant complaint of breach of interdict against the respondents; therefore sustains the preliminary defence, and dismisses the petition; Finds the respondents

Page: 532↓

entitled to expenses, allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report, and decerns.

“ Note.—The petitioner complains that the respondents committed breach of an interim interdict, which was originally granted on 31st July until 4th August, and was, by interlocutor of the latter date, continued till the future orders of Court. It sets forth five specific acts of alleged breach of the interdict, on various dates between 6th and 27th August.

They could have been in violation only of the order of Court continuing the interdict, that which granted it having ceased to be in force before these dates.

The respondents' procurator contended that the petition is irrelevant, because it does not set forth that the interlocutor continuing the interdict was served on the respondents, or that they knew personally that it had been pronounced. The petitioner's procurator pleaded that service of the interlocutor of continuation was unnecessary, and that the defenders' personal knowledge was to be inferred from the steps in the proceedings averred in the petition; farther, that the averment, that the respondents infringed the petitioner's rights under the patent “in utter contempt and in violation of the interdict,’ supplemented any want of specific averment of personal knowledge, and necessarily inferred such knowledge.

There is no doubt that in a quasi criminal complaint like the present, the complainer must set forth facts sufficient to infer the offence complained of, i.e., conduct in violation and contempt of the orders of Court.

The averment of service of the interdict is ambiguous, being that, ‘after the said interdict was granted and served on the respondents,’ they violated it on the occasions complained of. This apparently means service only of the interlocutor granting the interdict, not of that which continued it, and which the petitioner's procurator admitted was not served or otherwise formally intimated.

It is settled that a party's mere private knowledge of the interdict having been granted against him is not sufficient to found a complaint of this nature, seeing that the complainer may, for reasons satisfactory to himself, have resolved not to use it; and the party interdicted is not bound to obey it so long as the complainer has not by some formal act intimated the intention to put it in force; Clark v. Stirling, 14th June 1839, 1 D. 955, per Lord Mackenzie.

There is no fixed rule as to the mode of intimation. It may be by notarial act, or by service by an officer of Court, or even by verbal notice (per Lord Mackenzie, in Clark v. Stirling). But it must be some act on the part of the complainer used for the purpose of intimation.

The Sheriff-Substitute is not prepared to say that service of the original interlocutor, combined with the defenders' personal knowledge of its having been continued, would not suffice in a case like the present, seeing that the service, combined with the craving for continuance of the interlocutor, sufficiently indicated the petitioner's intention to put the interdict in force.

But he does not see how service of the original interdict can be held not only to render unnecessary any intimation of the interlocutor of continuation, but also to supply the want of the respondents' personal knowledge of the continuation.

A party cannot be guilty of contempt of an order of Court of which he had neither private knowledge nor formal intimation. Still more, is personal knowledge of the interlocutor of continuation essential in this case, seeing that the defenders' knowledge of the granting of the interdict originally is not averred, and it is not said that it was served on them personally.

Accordingly, supposing the petitioner were to prove all his averments on these heads, without proving more, there would not be ground for punishing the respondents as in contempt of Court; and the petition must be held as irrelevant; Ritchie v. Dunbar, 1849, 11 D. 887.

Nor can the absence of sufficient averments in point of fact to infer an offence of this kind be supplied by the words of style on which the petitioner founds; for in charges of criminality, fraud, contempt of court, and the like, the words stigmatizing the conduct in question must be supported by averring facts which indicate that the alleged offence has been committed. See Wilson v. Dykes, 1872, 2 Couper's Justiciary Reports, 183, where the Lord Justice-Clerk (Moncreiff) observed,—‘As regards the use of the terms “wickedly and feloniously,” I may remark that when general words implying criminal animus or intention are used in a libel to characterize acts in themselves indifferent or innocent, something must be stated beyond the general words to indicate the species facti which render the act criminal. If the particular act libelled be one to which the general words may reasonably apply, no farther specification may be necessary.’… ‘But if, as here, the legal result of the specific facts alleged is to leave the act innocent, the general words will not be sufficient as an allegation of crime.’

In the present case it is thought that, inasmuch as knowledge of the interdict having been granted is of the essence of a charge of contempt of Court for violating it, the absence of an averment of such knowledge cannot be supplied by the general charge of contempt.

If the question arose on an objection to the relevancy of an indictment for such an offence, the specification of the charge in the minor would be held insufficient to support the major.

The same principle must apply here, although the manner of its application is different.”

The petitioner appealed to the Sheriff-Principal ( Dickson), who adhered to the judgment pronounced by himself as Substitute.

The petitioner appealed to the Court of Session.

At advising—