Scottish Court of Session Decisions

This was an action of reduction and damages for the wrongous issuing of a process caption. The facts of the case appear sufficiently from the former reports, and the following interlocutor of the Lord Ordinary ( Mackenzie):—

“ Edinburgh, 24th November 1870.—The Lord Ordinary having heard counsel and considered the closed record, productions, and whole process, sustains the first plea in law stated for the defenders: dismisses the action, and decerns: Finds the pursuer liable in expenses, of which allows an account to be given in, and remits the same, when lodged, to the auditor to tax, and to report.

Note.—The pursuer concludes in his summons for reduction of a process-caption, obtained and executed against him by the defender Mr Daniel, and for damages, on the ground that Mr Daniel wrongfully and illegally applied for and obtained that process-caption, and incarcerated the pursuer thereon; and that the defender Mr Ligertwood, the Sheriff-clerk, is liable for the acts of Mr Daniel, who is his Depute. The pursuer maintains that the process-caption was illegally and incompetently granted, because (1) The petition, for recovery of which the caption was issued, was not a process, but was withdrawn by him before any procedure took place upon it, and was thereupon the private property of the pursuer, or of his client, and not under the control of the Sheriff-clerk, who was in no way responsible for it; (2) The pursuer never borrowed or granted a borrowing receipt for the petition referred to; and (3) The process-caption was obtained without any notice having been given to the pursuer that a complaint craving the issue of such a writ had been or was to be presented.

1. The Lord Ordinary is of opinion that the petition was, at the time that the pursuer took it away, not the property of pursuer, or of his client, and not within their control. The petition prayed for an interdict against Mr Alexander Edmond, the respondent therein, and also that immediate interdict should be granted. It is stated by the pursuer that a caveat having been lodged for Mr Edmond, the pursuer and Mr Edmond's agent met in the Sheriff clerk's office, that they went with Mr Daniel, the Sheriff-clerk Depute, before the Sheriff-Substitute of Aberdeenshire, who perused the petition, heard him and Mr Edmond's agent thereon, and stated that he would not grant the interim-interdict. The Lord Ordinary considers that there was, according to the pursuer's own statement, a judicial application laid before and considered by the Judge Ordinary of the bounds—a competent judge, who heard the parties, and pronounced a judicial decision on the application for interim-interdict. Mr Edmond the respondent was entitled to have that decision refusing interim—interdict written out and signed by the Sheriff—Substitute; and if the pursuer declined to proceed farther with the application, Mr Edmond had right to move that an interlocutor should be pronounced, dismissing the application, and finding him entitled to the expenses to which he had been put in opposing it. It is said that by immemorial practice in Aberdeenshire such a petition was the property of the petitioner, and might be disposed of by him as he pleased. Even supposing this averment to be true, it cannot affect the disposal of the present case, because such a practice, if it

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should exist, is, the Lord Ordinary thinks, contrary to law. The Lord Ordinary is therefore of opinion that the petition was a depending process when the pursuer, contrary to the order of the Sheriff—Substitute, given on the motion, or, as the pursuer calls it, the instigation of Mr Edmond's agent, carried it away; that the pursuer acted illegally and improperly in doing so; and that the Sheriff—clerk, who was the proper custodier of the petition, or his Depute, was entitled to apply to the Sheriff for caption in order to its recovery from the pursuer.

2. The pursuer farther maintains that the process-caption was illegally and incompetently granted for recovery of the petition, because he had never borrowed it or granted a borrowing-receipt for it. It cannot surely be maintained that although a warrant or caption for the recovery of a process may be issued against an agent who has legally and in ordinary form borrowed it from the Sheriff-clerk, and granted the usual receipt for its return, and has failed to return it when required, yet that a warrant or caption cannot be issued against an agent for recovery of a process which he has illegally and improperly carried away. Such a proposition is, it is thought, wholly untenable. The ordinary warrant for recovery of a process is a caption, until the process be returned. If such a warrant can be issued for the recovery of a process from an agent who is in lawful possession of it, it can certainly be issued for the recovery of a process, or any step of or production in a process, from an agent, or any other person, who has not only illegally and improperly, but in contempt of Court, as was the case in the present instance, taken it from the table on which it had been laid by the judge, in presence of the parties, after he had perused it and heard them thereon, and pronounced his decision.

3. The only other ground on which the illegality and incompetency of the process-caption are maintained is that no notice was given to the pursuer that a complaint craving the issue of such a writ had been or was to be presented. When an agent is lawfully in possession of a process by having borrowed it from, and granted a receipt for it to the clerk of the process, such agent is entitled to retain it until he shall receive notice for its return; and before a caption is issued intimation of the application for caption is, according to practice, given to the agent, in order that he may return the process within a specified time. Such practice depends not upon the provisions of any statute or act of sederunt, but solely upon the reasonableness and propriety of giving notice to an agent lawfully in possession of a process on a borrowing-receipt, that he must return it to the Clerk of Court, otherwise it will be recovered by the caption or warrant of the Court. But such a notice was, the Lord Ordinary thinks, not required in the case of the pursuer. He had no right to take or retain possession of the process. He was a wrongdoer who had not only illegally and improperly taken the petition out of the custody of the Court, but had, in contempt of Court, refused to return it when required by the Sheriff-Substitute to do so, and carried it away. He had, the Lord Ordinary is of opinion, got all the notice that he was entitled to when the Judge, as he himself avers, desired him to return the petition to the Clerk of Court. The process-caption was the legal and competent warrant for the recovery of the petition. In the ordinary case, practice, based upon sense and reason, requires that before caption is issued that notice should be given to an agent who has legally and properly borrowed on a receipt such a petition from the clerk. But such practice cannot apply to the pursuer's case, seeing that he had illegally and improperly carried away the process, in contempt of the order of the Court.

It is further averred by the pursuer that he was not informed by the sheriff-officer who executed the warrant that he was in possession of a process-caption against him. He does not say that the officer was not in possession of the warrant which gave him authority to act, or that the pursuer asked to see it and was refused. There was nothing illegal, so far as the pursuer avers, done by the officer in the execution of the warrant—Erskine, iv, 4, 33.

The Lord Ordinary, after careful consideration of the pursuer's statements, is of opinion that these statements are not relevant or sufficient in law to support the conclusions of the summons. These averments do not set forth any grounds on which it can be held that the proceedings complained of were incompetent or illegal and wrongful, or on which the process-caption can be reduced, and the defenders be found liable in damages. On the contrary, the application for and execution of the process-caption were fully justified by the circumstances disclosed in the pursuer's condescendence.”

The pursuer reclaimed.

Scott for the reclaimer.

The Solicitor-General ( Clark) and Shand for the respondents.

At advising—