Scottish Court of Session Decisions

By the Lanarkshire Road Act, § 25th, it is provided, that “all persons liable, who shall neglect or refuse to perform the statute-services when required, or where those have been converted, shall neglect or refuse to make payment of the conversion-assessment when demanded, as above enacted, shall be subjected in double the sum, at which the said services shall or might be converted, and the whole of such increased conversions or penalties shall be levied in virtue of a warrant under the hand of any two justices of the peace for the said county, who are hereby required to grant the same, proceeding upon the oath of the collector or overseer of the parish, bearing, that the defaulters have not performed the statute-work, or have not paid the conversion-money, and such warrants shall contain authority for poinding the defaulter's effects, and the officer to whom the same shall be directed shall forthwith poind the readiest goods and effects of the defaulter, and, three days thereafter, shall sell the same by public roup at the market-town or village next to the place where such diligence was used for payment of the sums contained in the warrant, and the expense of execution, rendering the overplus to the owner on demand; and no sist, suspension, complaint, appeal, or action shall stay payment of the conversion-assessment, or execution, as aforesaid, for recovering the same.”

It appeared that the pursuer was liable in statute-labour money in the parish of Shotts to the amount of £2, 5s., payable on the 14th February, yearly. In September, 1832, the pursuer being then two years in arrear, the defender caused his name to be included in a list of defaulters for the assessment of 1831, and, upon a petition to the justices, obtained a warrant against the whole defaulters for recovery of double the amount of their several assessments. The warrant bore to be granted at the instance of Weir, but did not proceed on an affidavit, as the act prescribed. Of this defect in the warrant no mention was made on the record, but the pursuer, in his pleas in law, stated the warrant, generally, to be illegal. It was put by the defender into the hands of Cherrie, a constable, for the recovery of the money due. Cherrie intimated, by letter, to the pursuer, that such a warrant had been obtained, and requested a meeting with him on the 4th October, at the Shott's Inn, which was kept by the defender. The pursuer met Cherrie accordingly, and, having paid the arrears for 1831 and 1832, received two receipts for £2, 5s. respectively, signed by him, to the last of which was added the following note:—“The above settled in full up to this date,” which also was initialed by Weir. On this occasion an altercation took place, upon the pursuer's refusing to pay five shillings to Cherrie by way of expenses, in addition to the assessment for 1831, Cherrie alleging, that, if he chose to exact it, he was entitled under the act to the double of the statute-labour money. Weir was in the inn while these proceedings were going on, though not present at the meeting.

The warrant continued in the hands of Cherrie, and the pursuer's name was allowed to remain as before on the list of defaulters. On the 25th January, 1834, Gentiles, another constable, received instructions from Cherrie, the holder of the warrant, to poind the pursuer's effects for the sum of £2, 5s., as expenses for recovering the road-money. Gentiles accordingly poinded and carried away certain pictures from the house of the pursuer at Ravenshall, the value of which appeared to have consisted chiefly in the pretium affectionis put on them by the pursuer, and which were subsequently sold at the neighbouring village for somewhat more than £3. The defender was in the neighbourhood at the time of these proceedings, and his name appeared on the schedule of poinding and execution, but he gave no instructions either to Cherrie or Gentiles, in regard to the poinding in question.

Graham, Bell, in opening for the pursuer, referred to the illegality in the proceedings arising from the warrant wanting an affidavit.

Dean of Faculty, for the defender, objected that the pursuer could not be entitled to prove the want of the affidavit, that fact not having been stated on the record. An illegality affecting the warrant which has not been particularly mentioned cannot he proved, as that would be surprise. The issue has reference exclusively to the record, which is the criterion by which the proof must be regulated.

Rutherfurd, for the pursuer. We libel the act of Parliament, and it is enough if under that we can make out these proceedings to he unlawful. When we refer to the warrant by its date, and then in a plea in law state it to be illegal, we are not bound to refer to a particular statement in point of fact. If in the proof something emerge dehors the warrant inferring illegality, we are surely entitled to found upon it.

Lord Meadowbank.—It appears to me that the question of illegality depends altogether upon a fact which should have been stated on the record by the party founding on it so as to put the opposite party on his guard. To allow it to be given in evidence now would be putting the defender at a disadvantage.

Judgment accordingly.

A witness, on examination in chief, deponed to the fact of his having received a certain decree. On his examination in cross, he was asked the date of the decree.

Dean of Faculty objected that the decree itself was the best evidence of its date.

Rutherfurd.—The general fact that there was such a decree has been allowed to be brought out. We are entitled to get the date of it.

The Court allowed the question.

A witness was interrogated as to the price he meant to have asked for certain pictures which he had offered unsuccessfully to sell to a party without naming a price. The question was objected to, and not allowed.

The pursuer maintained, in point of law, that the defender, in the circumstances of the case, was participant in the proceedings in question, and responsible for the actings of Cherrie and Gentiles. Macpherson v. Ettles, Feb. 28, 1787, Hailes, 1021; Dunlop v. Buchanan, Nov. 7, 1828, Murray, V. 16.

The defender maintained that he was not responsible, referring to the case of Stewart v. Macdonald, July 6, 1784, Mor. 13989; and, with a view to the amount of damages, argued that the pursuer ought, immediately upon the poinding of the pictures and before the sale, to have made the defender aware of the proceedings which were carrying on in his name, and not have allowed him to fall into the trap of an action of damages.