Scottish Court of Session Decisions

The pursuer William Landell, tenant of a farm in Berwickshire, raised action against Mrs Margaret Landell, domiciled in England, and residing at Berwick-upon-Tweed, on the allegation of her having received a sum of slave-compensation money under the act 3 and 4 Wil. IV. c. 73, to which sum he alleged that he had right. Mrs Landell had no property in Scotland, and the action was raised in virtue of a Border warrant under the following circumstances.

A paper was lodged by William Landell with Mr James Bell, sheriff-clerk of the county of Berwick, titled “Information for William Landell, tenant, &c., for Border-warrant against Mrs Margaret Brodie or Landell,” stating simply the nature of his claim against Mrs Landell.

There was no averment as to her having no domicile in Scotland or being at the time within the jurisdiction of the Sheriff of Berwickshire. This document was not addressed to any functionary, nor did it contain any petition for a warrant. Appended to the information was an oath, bearing to have been emitted by William Landell at Dunse, 6th July, 1836, deponing to the truth of the statement in the information, and signed by Landell and Bell, but not appearing to have been taken before a magistrate. Thereupon the following warrant appeared to have been granted by Bell: ^* “These are granting warrant to messengers-at-arms, sheriff-officers, and their assistants, to pass, search for, seek, take, apprehend, and arrest the person, goods, and gear of Mrs Margaret Brodie or Landell of the burgh of Berwick-upon-Tweed, widow of the deceased Mark Landell in Coldingham-hill, and incarcerate her in the jail of Greenlaw, at the instance of the said William Landell, tenant in Swinton Greenriggs, in the County of Berwick, whose claim or demand upon the said Mrs Margaret Brodie or Landell, is seven hundred and twenty pounds sterling, and also three hundred and sixty pounds sterling, subject to the liferent of the said three hundred and sixty pounds to the said Mrs Margaret Brodie or Landell, during all the days of her life, therein to remain, aye and until she shall find sufficient caution, acted in the Sheriff-court books of Berwickshire, that the same shall be made forthcoming, as accords, and appoints a domicile within the said county of Berwick, at which she may be cited, and that as well de judicio sisti as judicatum solvi. Given at Greenlaw the sixth day of July, eighteen hundred and thirty-six years.

(Signed) “ James Bell.”

Mrs Landell had come on a visit to the village of Ayton in Berwickshire, a few miles from the border, and on the 7th July, 1836, she was there arrested by a sheriff-officer bearing the above warrant, and immediately carried off in a post-chaise to Greenlaw jail. She was detained in jail four days, after which she was liberated on a bond of caution being executed by the defender Colville, surgeon in Ayton, binding himself for her appearance at all diets of Court in any action to be brought against her at Landell's instance before any competent court for the sum of compensation money above-mentioned.

Thereafter the present action was raised against Mrs Landell and the cautioner, concluding for payment of the debt claimed, and founding on the proceedings above mentioned, as constituting jurisdiction over her in the Courts of this country; against which the following preliminary defences were, inter alia, stated:—

“1. The defender neither being domiciled in Scotland, nor having

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^* The skeleton of this warrant is printed; the words in italics are written in the original warrant.

any property or effects in it, is not within the jurisdiction of the Court of Session, and the irregular and illegal proceedings which were adopted to force the defender within the jurisdiction of the Scotch Courts, are altogether ineffectual for that purpose.

“2. Dr Colville, who signed the bond of presentation, is not bound to make the other defender, Mrs Landell, appear as a party to this action, seeing that it has not been raised in a competent Court.”

The Lord Ordinary appointed cases to be lodged on the points arising out of these defences. ^*

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^* The following Queries relative to Border-warrants were addressed on the part of the defenders (with the concurrence of the pursuer, and the verbal sanction of the Lord Ordinary), to the sheriff-clerks, and other legal functionaries in the Border counties;—

1. Are such warrants in use in the county?

2. Are they granted for the purpose of arresting the persons or the goods of alleged debtors, or for both purposes?

3. Are they issued by the sheriff, magistrates of burghs, baron-bailies, justices of peace, or any of them, and state by which?

4. What is the form of application, i. e. is it by petition, or in what other shape?

5. When for arresting the person, is there an oath emitted by the creditor, and does it bear that the debtor is within the jurisdiction of the magistrate applied to?

6. When issued by any judge for either purpose, is the warrant signed by himself or by the clerk of court?

8. State as nearly as you can how many Border-warrants have been granted by the respective courts in your county, which are in the practice of granting them, during each of the last seven years?

To these queries, answers were returned severally from the sheriff-clerk of Dumfries-shire; from the town-clerks of Dumfries and of Annan; from Mr James Little, writer in Annan; from the sheriff-clerk of Roxburghshire; and from the justice of peace clerks of the Jedburgh, Kelso, Melrose, and Hawick districts of Roxburgh; from the justice of peace clerks of the Coldstream and Ayton districts of Berwickshire, and from the town-clerk of Lauder. The information contained in these answers is digested under the following heads, corresponding to the queries:—

1. Border-warrants are in use in the counties of Dumfries, Roxburgh, and Berwick. They are more used in the country districts than in the burghs; though not frequently even in the country districts.

2. In Dumfries-shire and Berwickshire, Border-warrants are granted exclusively for arresting the persons of alleged debtors. In Roxburghshire (with the exception of the justice of peace courts of the Kelso and Melrose districts, which follow the practice of the two first-named counties), the warrants are granted for the purpose of arresting both the debtor's person and goods.

3. Border-warrants are issued by sheriffs, magistrates of royal burghs within the royalty, and by justices of peace, but not by baron-bailies.

4. The form of application is by petition to the judge or magistrate.

5. An oath is emitted by the creditor applying for a Border-warrant, as to the verity of his claim; but the practice appears to vary as to the shape and substance of the oath in other respects. Thus in some courts the petitioner makes oath that his debtor is domiciled in England, and is at the date of the application within the jurisdiction of the judge to whom the petition is addressed. In other courts this fact is stated merely in the petition, the truth of the averments in which is attested by the oath. In the Hawick (justice of peace) district, warrants may be obtained on an oath that the debtor is a foreigner, and either within the jurisdiction at the time, or expected speedily to be so; and in this last case they are generally applied for on the eve of some of the fairs or markets on the Scots side of the Border, where the debtor is expected to attend. In one district the oath must bear that the debtor has no property in Scotland; but this seems to be generally an understood condition of the application for a Border-warrant. In the Kelso (justice of peace) district, the oath bears that the debtor is domiciled in England, and not amenable to the courts of law in Scotland, but not usually that he is at present within the jurisdiction of the magistrate applied to; in which case, however, the warrant is granted to apprehend him only if found within the jurisdiction of the magistrate granting the warrant.

6. Border-warrants are signed by the judge or magistrate, and not by the clerk of court.

7. The warrant is granted, in the first place, for the examination of the debtor. When the debtor has been brought before the judge granting the warrant, he is examined, and evidence is sometimes allowed to be led by both parties in regard to the alleged debt. Thereafter, if the judge see cause, warrant for commitment is granted, until caution be found de judicio sisti.

8. The answers to this query were in general not positive. In Dumfries-shire,—No Border-warrant has been issued by the sheriff since the accession of the present sheriff-clerk in 1822; about one in each year may be the average number granted by the courts which are in the practice of issuing such warrants; a legal practitioner in Annan ¹ had, in the course of his own practice, applied for and obtained three or four Border-warrants, on an average, each year during the last seven years. There was in the spring of 1837 an action depending before the magistrates of Dumfries on a Border-warrant at the instance of a Scotchman against an Irishman, for repetition of the price of an unsound horse, sold by the Irishman to the Scotchman at a fair in Scotland.

In Roxburghshire,—About one Border-warrant each year may have been granted by the sheriff during the last seven years, and the same number by the justices in the Kelso district. In Melrose district few Border-warrants have been granted, as it is a considerable distance from the Border. In the Jedburgh district four or five applications, on an average, have been made to the justices in each of the last seven years. In the Hawick district the justice of peace clerk cannot state the number of warrants granted during this period, but only ‘that they have been of very frequent occurrence.’ No record of Border-warrants is kept in the sheriff-court, the applicants always receiving back their applications with the principal warrants thereon; and the same remark will probably apply to the justice of peace courts, judging from the imperfect manner in which the clerks have answered the last query.

In Berwickshire,—Very few Border-warrants seem to have been granted of late years. No data are given for estimating their number; but in the Ayton (justice of peace) district, and in the burgh of Lauder, no applications have been made during the last seven years.

The form of procedure as to Border-warrants is stated to be on the whole very similar to the ordinary procedure in the case of meditatione fugæ warrants. In the Stewartry of Kirkcudbright and in Wigtownshire they are unknown.

Argued for the Defenders,—

There is nothing to take this case out of the general rule that an alleged debtor, who has neither domicile nor property in Scotland, cannot be made

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¹ Mr James Little.

amenable to the jurisdiction of the Scotch Courts. In regard to the defender Colville, his obligation under the bond of caution cannot be made effectual, in consequence of the illegality of the proceedings as to the arrestment of Mrs Landell, with which it was connected, and out of which it arose; ¹ and also because the Court of Session was not competent to entertain the action for Mrs Landell's appearance for which Colville became bound. Looking to this as a proceeding under a Border-warrant, conditions as to the granting of such warrants seem to have been requisite, which are awanting in the present case, viz.:—1st, That the debt for which the party is apprehended should have been contracted in the course of mercantile dealing on the Borders; 2d, That the warrant should have been granted by the Sheriff of a Border county, or the magistrates of a royal burgh; 3d, The existence of a similar practice on the English side, in regard to domiciled Scotchmen; this being the original ground on which the proceeding was justified. ² With reference to authorities both in law and practice, as well as to the general principles of law, the warrant and proceedings in question were irregular and illegal: ³ 1st, Because the party apprehended was not concealing herself in Scotland with the view of avoiding or defrauding her creditors; ⁴ 2d, The warrant was obtained without a written petition or application; 3d, The Sheriff-Clerk had no right to administer the oath, which he subscribed along with Landell; ⁵ 4th, The warrant was granted and subscribed by the Sheriff-Clerk, and not by the Sheriff of the county; 5th, The warrant was granted not for examination, but to commit the party de plano to Greenlaw jail. ⁶

Answered for the Pursuer;—

If a party domiciled in England be on the Scottish side of the Border, though he have no property in Scotland, he may be arrested on a Border-warrant for any description of debt. ⁷ The procedure, in regard to the warrant in question, is consistent with the usage of Berwickshire; particularly, 1st, It is customary in that county to grant Border-warrants, on summary application, for arrestment both of the person and goods of foreign debtors; 2d, This custom has existed time out of mind; and, 3d, The forms of the application for, and issuing of these warrants, have been

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¹ Robertson v. Chisholm, June 20, 1812, F. C.; Wright v. M'Gregor, June 28, 1827, ante, V. 855 (new ed. 794).

² Bell v. Robertson, Jan. 13, 1676, M. 12631 and 4827; Sir G. Mackenzie's Obs. 1672, c. 8; Ayrie v. Chatto, Feb. 6, 1701, M. 4826; Burn v. Purvis, Dec. 13, 1828, ante, VII. 199 (Lord Ordinary's note).

³ Bankton, I. 23, 36; Erskine, I. 2, 21; Clarke's Office of Sheriff, p. 135; Tait's Justice, p. 48 (4th ed.); 1, Hutcheson's Justice, p. 431.

⁴ Herries v. Litterdales, March 7, 1755, M. 2044.

⁵ Borthwick v. M'Gibbon, May 14, 1813, F. C.

⁶ Borthwick, supra; Service v. Hamilton, May 25, 1811, in 2 Bell, 562; Robertson v. Chisholm, June 20, 1812, F. C.

⁷ Hardie v. Liddell, January 1759, M. 4830.

the same as those used in the present case time out of mind. ¹ In regard to one of the principal objections to the warrant, the clerk was entitled, on the authority of the Sheriff-Court regulations of Berwickshire, and the analogy of a recent case, ² to grant and subscribe the warrant as he did. Assuming the procedure to have been legal, the defender Colville is bound, in terms of the bond of caution granted by him, the Court of Session being a competent Court to entertain the present question.

The Lord Ordinary made avizandum with the case to the Court, adding to his interlocutor the note subjoined. ^*

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¹ This alleged usage was denied by the defenders.

² Carrick v. Martin, 1, Shaw's Appeals, 257. The regulation referred to was as follows:—“Warrants of arrestment, named Border-warrants, shall not be issued by the clerk until the party or his attorney applying for the same shall produce a claim of debt, with an oath of verity or credulity bearing reference to it, and to the situation of the debtor, as warranting the application.”

^* “The Lord Ordinary does not report this case from any doubt of the gross irregularity and nullity of the whole proceeding under the Border-warrant; but in order to ensure a more authoritative, public, and effectual correction of the local abuses alleged by the pursuer, than would be effected by a judgment in the Outer-House, which might (by possibility) be acquiesced in, and never come to the general knowledge of the profession, or the legal functionaries of the Borders.

“Independent of minor and more questionable vices in the proceedings, the following appear to be utterly indefensible, and to admit of no justification from any local usage. 1st, The want of any judicial authority, or the presence, signature or interference of any magistrate or judge, from beginning to end of the transaction. Here is a proceeding in the Sheriff-Court, commencing with what is called an Information, embracing the examination of a party on oath, and issuing, in a warrant of imprisonment addressed to Sheriff-officers, the actual incarceration of a subject of the realm, and a bond of caution enacted in the Sheriff-Court books, all carried through without the Sheriff, Depute or Substitute, hearing one syllable of the matter, or either of the parties concerned having access or means of communication with him. If this be lawful, one can see no very good objection to the practice referred to by the defender, of the clerk selling blank-warrants of imprisonment to all and sundry, at the very reasonable price of fourteenpence halfpenny a-piece.

“To the Lord Ordinary it appears needless to go farther. But, even if the clerk could be supposed entitled thus to usurp one of the most delicate and responsible of a judge's functions, there are various other fatal flaws and nullities in the procedure; As (2.) the want of any petition, motion, or application of any kind to the judicial authority (whatever it was) intended to be invoked by the pursuer. No Court acts, or can act, spontaneously, or except upon motion. Naturally they are inert and passive bodies; and here, confessedly, there is no record, or allegation indeed, of there ever having been any prayer, craving, or requisition of any sort whatever. It is absurd to say, that what is called the Information bears, in its title or rubric, to be ‘an Information for a Border-warrant,” and that this is enough. It may be what it calls itself, and it may even be a good Information, or statement of facts, on which to found an application for such a warrant; but it is not such an application, and it is not pretended that it was ever followed up by any thing of the kind. What would be thought of a paper in this Court, which merely bore in its title to be a petition for sequestration, and yet contained in the body nothing but a statement that some one was indebted to the subscriber, and had not made payment, without any prayer or requisition? Yet even this would be better than the document now referred to, since the title of petition might imply that something was intended to be asked, while that of Information warranted no such inference.

“Then there is (3d) the want of any averment, either in the information or the oath, that the defender had no domicile in Scotland, or was at the time actually within the jurisdiction, though it seems to be required even by the Sheriffs' regulations of 1818. The last is thought to be a fatal flaw, though it is broadly justified by the pursuer, who sees no impropriety in a judge (or at least a clerk) pronouncing sentence of incarceration against an absent party, not only without citation, or means of defence, but in no way subject to his jurisdiction.

“As a necessary consequence of this, there is (4th) the want of any examination of the defender, or of any opportunity of saving herself from being hurried off to a distant prison, by showing that there had been a mistake of her identity—that she had a domicile in Scotland, or had actually paid the debt alleged against her, and had the pursuer's discharge in her pocket.

“(5th.) Then there is the want of any right or power in the clerk to take the oath of the party, and even of any commission or delegation of such a power from the Sheriff, as to which the case of Borthwick, 14th May, 1813, is conclusive, and is not in the least affected by that of Carrick, 26th July, 1822 (1, Shaw, 257), where there was a regular commission to the clerk examinator.

“(6th.) And, finally, there is the want of any judge's signature to the actual warrant of imprisonment, or even of any pretended delegation to the clerk to sign for him—though that would have been obviously unavailing. This is believed to be the very first time that the legality of such a warrant was attempted to be vindicated in a court of law; and it is needless to say more of it, than that it is inconsistent with the very first principles of justice and liberty, and even with the practice of all the other Border functionaries, except (as he himself alleges) the Sheriff-Clerk of Berwickshire. Neither his practice, however, nor that of his predecessors, can possibly justify such an enormity; and, therefore, no proof of it has been allowed. How far such a practice, or the bona fides which it may have created, might protect the parties against the penal consequences of their proceedings, the Lord Ordinary forbears now to enquire; but he has no conception that it can ever legalize or support the ordinary action in which the pursuer is now insisting.”