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Pagan v Horsburgh [1835] CA 13_471 (14 February 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0471.html Cite as:
[1835] CA 13_471
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SCOTTISH_Shaw_Court_of_Session
Page: 471↓
Pagan
v.
Horsburgh
No. 150.
Court of Session
2d Division T.
Bill-Chamber
Feb141835
Ld. Cockburn
,
Lord Justice-Clerk,
Lord Medwyn,
Lord Meadowbank,
Lord Glenlee.
Willam Pagan,Suspender.—
D. F. Hope.
Thomas Horsburgh,Respondent.—
Anderson.
Subject_Process-Caption—Diligence.—
Bill of suspension as of a threatened charge on a process-caption in an inferior court refused; and Observed, that if such caption be improperly issued, redress should be sought, in the first place, by application to the inferior judge.
The suspender, Pagan, writer in Cupar-Fife, was agent for the defender in a process at the instance of the respondent, Horsburgh, Sheriff-clerk of Fife, and Mr Monypenny, W.S., is trustee. After decree had
been pronounced against the defender, a process-caption was issued, on the application of Horsburgh as sheriff-clerk, against Pagan, whose receipt stood for the process, for recovering it in order to extract the decree. Before any intimation of the issuing of the caption, it was withdrawn without having been executed. Pagan, however, presented a bill of suspension, as of a threatened charge, to which it was answered, that the proper course of redress, where a process-caption was improperly issued (which it was farther maintained had not been the case here), was by note to the Sheriff, and that, at all events, a bill of suspension as of a threatened charge on a process-caption was quite unknown and incompetent, especially after the caption was confessedly recalled. The Lord Ordinary refused the bill, with expenses, adding the subjoined note.
*
Pagan reclaimed.
_________________ Footnote _________________
* “The complainer admits that he borrowed the process last November, and does not allege that he has ever got his receipt for it cancelled. His dealings with the opposite agent are, and ought to be immaterial to the public officer, who is responsible for the papers, and is entitled to rely on the receipt.
Lord Justice-Clerk.—We certainly ought not to encourage this mode of procedure coming before this Court in such cases.
Lord Medwyn.—The caption was issued, but immediately withdrawn, and what grounds are there for suspension? I see no occasion to go out of the common course. It may be competent to come here, but it is very inexpedient.
Lord Meadowbank.—I am quite of the same opinion. Receiving complaints for malversation is quite different from interfering as here sought for, while the ordinary means of redress is open before the Sheriff. The proceeding is perfectly unnecessary, and I am for adhering.
Lord Glenlee.—I am entirely of the same opinion.
The Court accordingly adhered.
Solicitors:
John Murdoch, S. S. C.—
A. Monypenny, W. S.—Agents.