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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Maclachlan v. John W. Bruce & Co. and Another [1911] ScotLR 433 (06 February 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0433.html Cite as: [1911] SLR 433, [1911] ScotLR 433 |
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Page: 433↓
[Sheriff Court at Glasgow.
It is competent to appeal to the Court of Session against a sentence by a Sherifi-Substitute imposing a fine for breach of interdict with the alternative of imprisonment.
Allan Maclachlan, residing at Glenfern, Tighnabruaich, Argyllshire, pursuer, presented a petition in the Sheriff Court at Glasgow against John W. Bruce & Company, accountants, 128 Great Western Road, Glasgow, and John Wilson Bruce, accountant and house factor in Glasgow, and residing at 122 Great Western Road, Glasgow, the only known partner of said
Page: 434↓
firm, defenders, in which the pursuer complained that the defenders had committed a breach of an interdict, granted by the Court in a previous action, and craved the Court, on the charge being admitted or proved, to fine the defender John Wilson Bruce £50, or such other sum as the Court might see fit or otherwise, or failing payment of said fine to commit him to prison for such period as the Court should see fit. On 6th December 1911 the defender John Wilson Bruce compeared, and being judicially examined answered that he was not guilty of the breach of interdict charged. Eo die the Sheriff-Substitute ( W. Scott Moncrieff) allowed a proof.
On 20th December 1911, after proof led, the Sheriff-Substitute ( A. S. D. Thomson) pronounced the following interlocutor:—“Finds that the defender John Wilson Bruce in acting as above has committed a breach of the said interdict: Therefore fines and amerciates the said John Wilson Bruce in the sum of five pounds of penalty for said breach of interdict, payable to the Procurator-Fiscal of Court for the public interest, and failing payment thereof within fourteen days from this date, decerns and adjudges the said John Wilson Bruce to be imprisoned for the period of twenty days from the date of his incarceration (unless the said fine shall be sooner paid), and thereafter to be set at liberty: Grants warrant to officers of Court to apprehend and convey the said John Wilson Bruce to the prison of Glasgow, and to the keeper of the prison to receive him.”
The defender John Wilson Bruce appealed to the Second Division of the Court of Session.
On 18th January 1912 the case appeared in the Single Bills, when the respondent objected to the competency of the appeal.
Argued for the respondent—The proceedings and sentence were of a criminal nature, and therefore the Court of Session was not the proper tribunal to which to appeal. If an appeal were competent, it could only be to the High Court of Justiciary, but the judgment of the Lord Justice-Clerk in the case of Monro v. Robertson's Trustees, June 24, 1834, 12 S. 788, indicated that there was no appeal at all from the Sheriff Court to any other Court against a sentence for contempt of court. The cases of Stark's Trustees v. Duncan, January 24, 1906, 8 F. 429, 43 S.L.R. 288, and The Caledonian Railway Company v. Hamilton, August 3, 1850, 7 Bell's Appeal Cases 272, did not establish a right of appeal to the Court of Session, because in neither of these cases was the general question of the competency of the appeal to the Court of Session discussed or decided. In Stark's case the question under discussion was whether or not the parties had virtually constituted the Sheriff an arbiter and thus barred themselves from appealing, and in the Caledonian Railway Company's case also the discussion was concerned with a specialty.
Argued for the appellant—The case of the Caledonian Railway Company v. Hamilton, supra, settled that the Court which pronounced the sentence had not sole jurisdiction. There was now a settled chain of practice which established the right of appeal against such sentences to the Court of Session— The Caledonian Railway Company v. Hamilton, supra; Henderson v. Maclellan, &c., May 23, 1874, 1 R. 920, 11 S.L.R. 531; Christie Miller v. Bain, July 9, 1879, 6 R. 1215, 16 S.L.R. 721; Wallace's Sheriff Court Practice, p. 453–5.
The opinion of the Court was read by
It is true that, in the words of Lord President Inglis ( Christie Miller v. Bain, 1879, 6 R. 1215), “in one sense a petition for breach of interdict is a criminal proceeding. But one cannot help seeing that in many ways it is a civil proceeding. Civil interests are often largely concerned, and therefore it is often called a quasi-criminal proceeding.” But the procedure in the Sheriff Court seems to be by way of petition in ordinary form, and there are numerous instances in the books of appeals taken to the Court of Session in such cases, e.g., Henderson ( 1874, 1 R. 920): Brown ( 1882, 9 R. 1183, 19 S.L.R. 838); Stark's Trustees ( 1906, 8 F. 429). In the last of these cases some objections of a special kind were stated to the competency of the appeal, and were repelled, but it seems to have been assumed that an appeal to the Court of Session was, in the general case, competent. An instance of an appeal in such a matter from this Court to the House of Lords is to be found in Caledonian Railway Company v. Hamilton ( 1850, 7 Bell's App. 272). The objection to the competency of this appeal seems therefore to be counter to a strong current of practice, and as we were not informed of any contrary authority we think it must be repelled. The cases referred to were all prior to the recent Sheriff Courts Act of 1907, but as counsel did not suggest that any ground of objection to the competency of this appeal is to be found in its manifold provisions we assume that none such exists.
The
The Court found the appeal competent, and appointed the cause to be put to the Summar Roll.
Page: 435↓
Counsel for the Appellant and Defender— J. R. Christie. Agents— Sturrock & Sturrock, S.S.C.
Counsel for the Respondent and Pursuer— Malcolm. Agents— Carmichael & Miller, W.S.