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Scottish Court of Session Decisions >>
Dinwoody and Others v Gilles. [1748] Mor 7636 (22 November 1748)
URL: http://www.bailii.org/scot/cases/ScotCS/1748/Mor1807636-348.html Cite as:
[1748] Mor 7636
Extent of jurisdiction competent to one Justice of the Peace.
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John Gilles of London, pot-painter, engaged for five years with the company set up at Glasgow for pot-painting, and became bound to observe the company's orders, and serve them, and no other, during that space; and after elapsing said term of years, to be at liberty to continue or not; but that if he withdrew, he should not work with any other person in Scotland, separate from said company; all under the penalty of L. 100 Sterling.
Notwithstanding this contract, Gilles, without acquainting his masters, did, at the desire of James Lyle, writer in Glasgow, privately erect an oven, after the shape of a kiln, and made experiment of Mr Lyle's clay, and gave directions for making a turning wheel for turning said clay, &c.
A complaint of this being made by the Company to the Provost of Glasgow, he brought Gilles before him, and, upon his confession, committed him to prison, till he should find caution for his good behaviour in time coming.
Of this sentence, Gilles presents a bill of suspension, which the Ordinary 'refused.'
Upon advising the petition, some of the Lords observed, that although the Provost, even qua such, and separatim as a Justice of the Peace, might commit to prison till caution were found judicio sisti, yet the commitment in the present case exceeded the power of one Justice, as the ordering imprisonment till he should find caution to perform his contract, was a judgment pronounced upon his confession, which it was incompetent for one Justice to do.
Others doubted but that even one Justice might do it, as one Justice may decern a servant to perform his service; for although, by the statute of Cha II. three Justices of the Peace are a quorum. yet, in England, one Justice of the Peace judges in the case of servants; and the same powers that Justices have in England, are given to the Justices of the Peace in Scotland.
The Lords, without giving any interlocutor upon the competency of one Justice to judge, “Remitted to the Magistrates of Glasgow, to set the petitioner at liberty, upon his finding bail, not under L. 10 Sterling, for the due performance of his contract; or, upon his deponing that he is unable to find such caution, to set him at liberty upon his enactment to perform the same, under the penalty of L. 100 Sterling.”
