(Ante, vol. ix. p. 20.)
Subject_Damages — Imprisonment — Contempt of Court.
A petitioner's agent in a Sheriff Court carried off the petition against the wish of the Sheriff. The Sheriff granted a caption for recovery of the petition, without giving the agent notice, and the agent was imprisoned. In an action of damages for wrongous issue of a process caption, against the Sheriff-Clerk and his Deputy,— Held (affirming decision of Second Division), that the Sheriff had acted regularly in granting a warrant to imprison the agent, and that no notice was necessary in the circumstances.
Judgment altered so far as to give the respondents their costs—no costs having been given in the Court of Session.
This was an appeal from a decision of the Second Division of the Court of Session. An action of damages was brought by the appellant, Mr Watt, against the Sheriff-Clerk and his Deputy for false imprisonment in the following circumstances:—Mr Watt, as law agent for Mr Mowatt, was about to present a petition for interdict to the Sheriff of Aberdeen, and on the day appointed for hearing the application, Mr Watt appeared before Mr Sheriff Thomson, there being also an agent present from his opponent to oppose the application. On 19th March 1867, Mr Sheriff Thomson being thus in Court, and the matter being mentioned, both agents were heard, and the Sheriff intimated that he would refuse the interdict. The Sheriff was then in course of directing the Sheriff—Clerk (Mr Daniel) then officiating for Mr Ligertwood, who was absent in London, to endorse the refusal on the petition, which was lying on the table. Mr Watt, on hearing the Sheriff's decision, said, then “I withdraw the petition,” and he took up the petition. The Sheriff told him it could not be withdrawn, and must be left on the table, and if removed it would be treated as a contempt of Court. Mr Watt, however, kept the petition and walked away with it to his office. Mr Daniel then applied to the Sheriff for a caption to recover the document, and filled up the usual warrant, which the Sheriff signed, and the officer went with it. Mr Watt, on seeing the officer, tore up the petition and put it in the fire. The officer then apprehended Mr Watt, and lodged him in prison. He was released next day. He soon after commenced an action against the Sheriff, the Sheriff-Clerk, and the Sheriff-Clerk Depute, claiming £5000 damages and solatium for his imprisonment. The action, after an appeal to the House of Lords in 1870, was dismissed as against the Sheriff. The other defenders, however, were proceeded with. The pursuer alleged that the petition was his own document, and that at all events the Sheriff-Clerk had no right to issue without notice a warrant of imprisonment, which was incompetent, reckless, and illegal. The defenders contended that the document was part of the process, and was in the custody of the Court. The Lord Ordinary held the allegations to be irrelevant, and dismissed the action. On reclaiming note, the Second Division varied from that judgment, and pronounced an interlocutor to the effect that in the circumstances the petition was a document in the custody of the Court, that it was competent to the Sheriff to issue a summary order or warrant ordering the pursuer to restore the petition, failing which to be immediately imprisoned till that order was implemented, but that it was irregular to carry into execution a warrant on an ordinary process caption without notice, but as the pursuer, from his own illegal and culpable conduct, was in any view liable to be proceeded against in a summary manner, he was not entitled to damages against the Sheriff-Clerk or his Depute for an error in form committed by the Sheriff in the course of his official duties, and the action was dismissed, but no expenses were found due to either party. The pursuer appealed against that judgment, and there was a cross appeal by the respondents.
Counsel for the appellant contended that the Sheriff-Clerk Depute acted harshly and unjustifiably, and no warrant to imprison could lawfully issue without first giving notice.
Counsel for the respondents were not called upon.
At giving judgment—
Affirmed with costs, and judgment varied.
Counsel for Appellant— J. Pearson, Q.C., and Robertson. Agent— William Officer, S.S.C.
Counsel for Respondent—Lord Advocate ( Gordon) and Anderson. Agents— Tods, Murray, & Jamieson, W.S.