Scottish Court of Session Decisions

The Civil Imprisonment (Scotland) Act 1882 (45 and 46 Vict. cap. 42), sec. 6, enacts—“In order to amend the law in regard to imprisonment in the process of lawburrows, the following provisions shall have effect, that is say—(1) It shall not be competent to issue letters of lawburrows under the Signet in the Court of Session or Court of Justiciary. (2) Upon an application for lawburrows being presented, the sheriff or sheriff-substitute or justice of the peace shall immediately, and without taking the oath of the applicant, order the petition to be served upon the person complained against, and shall at the same time grant warrant to both parties to cite witnesses. (3) At the diet of proof appointed, or at any adjourned diet, the application shall be disposed of summarily under the provisions of the Summary Jurisdiction Acts and without any written pleadings or record of the evidence being kept.… Provided always that, except in so far as expressly altered by this section, nothing in this Act shall affect the existing law and practice in regard to the process of lawburrows.”

Kenneth Mackenzie, complainer, brought a note of suspension against Kenneth Maclennan, respondent, craving the Court to suspend simpliciter a decree of lawburrows granted on 27th October 1915 by the Sheriff-Substitute (Squair) at Stornoway against the complainer in an application for lawburrows at the instance of the respondent against the complainer.

The respondent pleaded—“(2) The present application being incompetent ought to be refused.”

On 1st February 1916 the Lord Ordinary ( Ormidale) allowed the parties a proof of their averments and to the complainer a conjunct probation.

Opinion.—“The procedure in a petition for lawburrows is now regulated by the Civil Imprisonment Act 1882 (45 and 46 Vict. cap. 42).

Under the older law and practice the party taking out letters of lawburrows was not bound to give, and in practice did not give, any notice at all to the alleged wrongdoer. The letters passed on a bill without the production of any warrant, and all that was required was that before execution the messenger should take the complainer's oath that he dreaded bodily harm, injury, and oppression. There was absolutely no inquiry of any sort. Further, if the charge under the letters to find caution

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was disobeyed, then the alleged wrongdoer might be denounced as a rebel and put to the horn and caption taken on the registered letters.

It is not surprising that long prior to 1882 it had come to be recognised that the exercise of the process, which dated from the fifteenth century, was subject to equitable restraint. Bills for caption in applications by one spouse against the other, and by a parent against his child, were invariably refused unless some cause was disclosed for the alleged apprehension of bodily harm, and the cases cited at the discussion illustrate the frequency with which in suspensions inquiry was allowed where the complainer in the suspension made averments relevant to infer that the letters had been obtained not from any genuine apprehension of bodily or other harm but from motives of malice or ill-will— Oadois v. Baird, 1856, 28 S. Jurist 682; Randall, 1867, 40 S. Jurist 554; Aitchison, 1869, 6 S.L.R. 604; Taylor, 1829, 7 S. 794. It had come to be recognised that some inquiry was essential to meet the ends of justice. An example of the circumstances in which suspension will be refused is found in Brock v. Rankine, 1 R. 991, 11 S.L.R. 571.

Accordingly it was not disputed by Mr Crawford that prior to 1882 suspension was a competent form of relief open to a party who undertook to prove and did prove that the letters of lawburrows had been taken out and executed merely from malice and without probable cause.

The old procedure was entirely displaced by the Act of 1882. Under that statute it is now necessary for the application for lawburrows to be made before a sheriff or justice of the peace, and it has to be served on the party against whom the complaint is made. The application is to be disposed of summarily, but both parties are entitled to lead proof. Lawburrows can no longer therefore be obtained without an opportunity being given for inquiry into the facts.

That being so, Mr Crawford maintained that the remedy by way of suspension is no longer competent. I am not prepared to affirm that contention either in respect of the reference to the Summary Jurisdiction Acts in section 6, sub-section 3, of the statute of 1882, or on general principles. On the other hand it is very obvious that where there has already been an inquiry into the circumstances the Court will not be so ready as formerly to suspend the proceeding complained of. Still I see no reason for refusing the relief sought if there is a clear and satisfactory statement of facts in the note of suspension relevant to infer that the proceedings were taken from motives of malice and without any probable cause.”

[ His Lordship then dealt with a matter not reported.]

The respondent reclaimed, and argued—The suspension was incompetent. The procedure in an application for lawburrows was now regulated by the Civil Imprisonment Act 1882 (45 and 46 Vict. cap. 42), section 6. That abolished the issue of letters of lawburrows. While letters were in use they were granted as a matter of course without intimation. This procedure was open to abuse, and the remedy of suspension was appropriate to it and was allowed, as it provided a means of bringing the merits of the cause for the first time before a court. But when the use of letters was abolished, this remedy, appropriate only where there had been no inquiry into the merits, became useless and was necessarily abolished also. Further, the Civil Imprisonment Act 1882 enacted that application for lawburrows should be disposed of under the Summary Jurisdiction Acts without written pleadings or recording of the evidence. Consequently the right of appeal was regulated by these Acts if any such right existed. In 1882 the Summary Jurisdiction Acts were defined by the Summary Jurisdiction (Scotland) Act 1881 (44 and 45 Vict. cap. 33), which was now superseded by the Summary Jurisdiction (Scotland) Act 1908 (8 Edw. VII, cap. 65). This was a “cause” in the sense of section 2 of that Act, and appeal was by section 60 to be by stated case. The present case was simply an appeal against the Sheriff's decree, and was therefore incompetent.

Argued for the complainer—Suspension was competent. Prior to 1882 the letters were followed up by a charge; suspension of the charge was then competent— Gadois v. Baird, 1856, 28 S. J. 682; Randall v. Johnston, 1867, 40 S.J. 554. A charge was still competent and so was the remedy of suspension. But in any event the Civil Imprisonment Act 1882 ( cit.), section 6, altered the law only in so far as it did so expressly, while the argument for the respondent was based on an implied repeal of the remedy of suspension.