Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Duncan Campbell
v.
Charles Weir, and the Sheriff and Procurator-Fiscal of Lanark

Date: 20 June 1740

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Charles Weir, procurator in the Justice of Peace Court of the shire of Lanark, was, by the sentence of the Lords, declared incapable of acting as agent or procurator before any court in Scotland, imprisoned for a month, and condemned to pay the pursuer's damages and expenses, for having fabricated an execution of a charge, upon a decreet of the Justices, against Campbell, to which he got a constable and two witnesses to put their names, and upon which he arrested and detained the said Duncan Campbell in prison.

The Lords apprehending, from some facts that came out in the examination of this affair, that Weir, the sheriff-substitute, and Buchanan the procurator-fiscal, had colluded with Charles Weir, in so far as to endeavour to screen him from punishment, ordered ex officio inquiry to be made into the matter. The fact, with respect to them, is shortly this :—The fiscal, ex propria motu, without any application from the private party, who was satisfied with a warrant he had got from the bailie of the regality for apprehending Weir, applied to the Sheriff for a new warrant, not only against Weir, but against the constable and witnesses. This warrant he obtained, and executed in the most rigorous manner against the constable and witnesses, by carrying them most violently, from Hamilton, where there was a sufficient prison, to Ruglen ; but, as to Weir, he allowed him to remain in his own house, under the custody of the Sheriff-officers. This being the fact, notwithstanding it was alleged that the prison in Hamilton belonged to the bailie of the regality, whereas the prison of Ruglen was the King's prison, and in the head burgh of the shire, and that Weir was not put into the tollbooth, because the Sheriff was in doubt whether he should not admit him to bail, for which he had given in a petition ; yet the Lords found, that the procurator-fiscal had colluded with Weir to screen him from justice, and therefore condemned him to pay six pounds in name of fine, and expenses of the complaint, and the President severely reprimanded him. And the Sheriff-substitute was likewise reprimanded, though more gently, because, notwithstanding there was no direct evidence, yet there was some presumption that he was in the plot with the fiscal, to deliver Weir from justice ; and because he ought to have a stricter eye over the officers of the court, and taken more care how his warrant was put in execution. The warrant itself, in this case, was not altogether legal, as it was conceived, it being to commit to any sure prison, whereas it should have been to commit to the next sure prison.

I shall relate here, propter contingentiam causæ, a decision of the like nature against Wilson, procurator in the Sheriff-court of Glasgow, July 12, 1740. This Wilson was condemned to pay £50 sterling to the complainer, Buchanan, for damages and expenses, and was fined £5 to the poor, for having given directions to his servant to fill up a blank execution, signed by a messenger and two witnesses, without any direction or information from the messenger; by which means the execution was made personal, whereas it was only at the party's dwelling-house, and the witnesses were made attest a fact which they knew nothing about, having seen no execution at all, either personal or at the dwelling-house.