Scottish Court of Session Decisions

Harvey presented a petition and complaint against Swan, writer in Greenock, holding a commission as Sheriff-Substitute of the county of Renfrew, with power to officiate in the absence of the regular Sheriff-Substitute of the bounds, setting forth the Act of Sederunt 6th March, 1783, whereby all Judges are prohibited from acting, directly or indirectly, as procurators or agents in any process or proceeding before themselves, or in which they are themselves to judge, and alleging that a violation thereof had lately been committed by Swan, in so far as he had acted as procurator or agent in a proceeding as to a meditatio fugæ warrant against the complainer, and that Swan had thereby “been guilty of a gross violation both of the common law and of the Act of Sederunt, or of one or other of them, and had subjected himself to pains and penalties, and ought either to be deprived of or suspended from his office, or visited with such other punishment as the Court might deem suitable to his offence.” The complaint farther stated that Harvey would take steps against Swan and the other parties implicated, in order to obtain personal reparation for the injury and damage he had sustained through the proceedings in question, but in the mean-time felt himself “called upon to lay the matter before the Court under the present complaint, so that a public example might be made, on account of the flagrant violation of judicial duty, and gross interference with the due administration of justice, which had been committed by Swan.” The prayer was to ordain the petition to be served, and either grant warrant for bringing Swan before the Court for examination, or to ordain answers to be lodged, and “find that Swan has been guilty of malversation in office, or has otherwise acted illegally, by acting both as agent and judge, &c., and on that account to deprive him of or suspend him from his office, or award against him such other penalty as the Court should see cause.” There was no concurrence by the public prosecutor.

The respondent, Swan, while denying the justice of the complaint on the merits, objected in limine that it was incompetent;—(1.) That, looking to its whole scope and conclusions, the application was essentially of a penal nature, and as such ought to have had the concurrence of her Majesty's Advocate. ¹ (2.) That even if this could be considered as a civil suit proceeding upon the Act of Sederunt, it was rendered incompetent, and the complainer was barred by the statement in gremio as to his having a separate action of damages in view, since it was unwarrantable that the respondent should be liable to two courses of litigation for the same offence, at the instance of the same party, and both of them in the shape of a civil suit.

To this it was answered—1. That the application is laid expressly on the Act of Sederunt 1783, and does not require the concurrence of the public prosecutor; ² that in M'Intosh's case the ground of decision was, that the party complaining had no proper interest, and in the case of M'Aulay the complaint was not laid on the Act in question. 2. That in no case of this description has a complainer been required to renounce his claim of damages, and the statement of such claim being in prospect cannot affect the competency of the proceeding; that there is no incompetency in having the Act of Sederunt applied, and at the same time having an action of damages; that a party may in some cases, as of acts inferring injury and crime, conclude both for punishment and damages; and if, in the present case, the proper form for having the provisions of the Act applied is by summary petition, and the proper form for obtaining damages is different, so that the two rights to have punishment inflicted and damages awarded cannot well be combined in one proceeding, there is no reason why the complainer should be cut out of his double right, and prevented from having the Act enforced by means of the present complaint, and thereafter suing for damages in a separate action.