Scottish Court of Session Decisions

The estates of John Love, merchant in Glasgow, were sequestrated, and a competition for the office of trustee ensued between Edward Railton and Neil Campbell M'Laren, accountants in Glasgow. During the dependence of the competing applications for confirmation, and before the record was made up, Love and M'Laren presented a petition and complaint, with concourse of the Lord Advocate, against Railton. They stated that he had fabricated a minute relative to the election of an interim factor, which embodied false statements; that he had used this in opposing an application of Love for personal protection; and that he had employed the names of various creditors, without authority, as opposing that application; and also, that he had wilfully altered the tenor of the affidavit, and claim of two creditors, and had voted upon these vitiated documents for his own election, as trustee. The petition prayed the Court “to ordain Railton to put in answers thereto in writing, in terms of the Act of Sederunt, within a short space; and, thereafter, to remit this petition, if your Lordships shall see cause, to the process of competition, now in dependence in this Division of the Court, for the: office of trustee, betwixt the said Edward Railton and the petitioner, Neil Campbell M'Laren; or, if your Lordships shall see cause, to conjoin the said process of competition with this complaint; and, in the said conjoined proceedings, or in this process, if the same shall not be conjoined, to find, that the conduct of the said Edward Railton, in the different respects before set forth, in so far as the petitioners are respectively concerned, was grossly illegal and culpable; and that the said Edward Railton is not a fit and proper person to discharge any office in the sequestrated estate of the said John Love; and to inflict such punishment or censure on the said Edward Railton, or otherwise to deal with him, as to your Lordships may seem proper; and to find him liable in the expenses of this application.”

No list of witnesses was appended to this complaint.

Part of the charges contained in this complaint had been made the subject of a criminal accusation against Railton before the Sheriff, at Love's instance, with concourse of the Procurator Fiscal. A precognition had been taken, and the Sheriff “granted warrant to commit the said Edward Railton to the jail of Glasgow, as charged guilty of the crime set forth in the petition, therein to be detained till liberated in due course of law, as craved in the prayer of said petition,”

Railton raised letters of intimation under the act 1701, c. 6, after which he was liberated on bail.

In answer to the complaint by Love and M'Laren, Railton pleaded, 1. That as sixty days had elapsed after the intimation, without any criminal prosecution being raised against him, he could not be called to account criminally, for the matters complained of before the Sheriff, except under new criminal letters raised in the High Court of Justiciary. 2. That as the complaint was substantially a criminal libel, raised with concourse of the Lord Advocate, and charged the respondent with offences of a very grave character, and concluded that the Court should declare him unfit to discharge any office in the sequestrated estate, and inflict punishment or censure upon him, it ought to have been framed with all the precision of an indictment, to have been served on the usual induciæ, and to have been accompanied by a list of witnesses. But none of these requisites had been complied with, and it was now too late to remedy them. 3. That as the respondent was not a member of Court, and until he was confirmed in the office of trustee he was not amenable to the Court in a summary manner. 4. That in so far as the petition was of a merely civil character (which it was only in a very subordinate degree, if at all), it contained nothing which would not have been more properly stated in the existing process of competition, in which the record was not yet made up.