Scottish Court of Session Decisions

The pursuer, Angus Macintosh of Holm, seeks to reduce an order dated 13th June 1852, and signed by the defender, who is one of the Sheriff-Substitutes of Edinburgh, by virtue of which he was taken to Saughton Hall Madhouse, and confined there; as also a license to Drs Smith and Lowe to receive and detain him there. He complains that he never was a furious or fatuous person, or lunatic, and that in the petition presented to the defender he was not described as such, but only as a person who was in a state requiring the restraint of an asylum, which might mean no more than that he had been drinking to excess.

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He complains further that the defender had no sufficient legal evidence before him; that the Act 55 Geo. III., cap. 69, sec. 8, required evidence “by medical certificate and otherwise,” but that the defender, contrary to the Act, had rested satisfied with the medical certificate alone; that the pursuer was not made a party to the proceedings, or allowed an opportunity of defending himself; that the defender could not act as he did until after he had been cognosced; that the defender had no authority whatever to pronounce the order, and that he acted maliciously and without probable cause.

The defender satisfied the production, and pleaded, inter alia, that the action was incompetent against him in respect that he had no interest, and further, that the action was irrelevant. Lord Jerviswoode sustained both these pleas.

His Lordship added the following note to his interlocutor:—

“The process with which the Lord Ordinary has been here called on judicially to deal is of a character which, so far as the Lord Ordinary can discover, is without direct precedent.

The conclusions of the summons are directed to the reduction and declarator of nullity of certain writs therein described as—‘ First, Interlocutor, order, or warrant, granted and signed by the defender, Patrick Arkley, on or about the 13th June 1852, whereby authority was granted by the said defender for the confinement of the pursuer in Saughton Madhouse. Second, Madhouse license granted by the said defender, of same date, whereby Drs Smith and Lowe, keepers of the said Madhouse at Saughton hall, were authorised to receive into and detain the person of the pursuer in their said Madhouse,’ and also of certain renewals of said license.

The only defender called in the action to answer to the conclusions is ‘Patrick Arkley, Esquire, advocate, one of the Sheriff-Substitutes in the county of Edinburgh or Mid-Lothian, and residing in Edinburgh,’—and it appears ex facie of the summons, that the order or warrant, of which reduction is sought, was granted by the said defender, under a petition which bore to be presented in the name of the mother of the pursuer, and to be based upon a certificate, on soul and conscience, by ‘Geo Glover, surgeon,’ and ‘Thomas G. Weir, M.D., Edin.’

Thus, it is apparent from the judicial statement of the pursuer, that the defender was not the originator of, nor sole actor in, the proceedings of which the pursuer complains, but that these commenced under an application to him solely in his official and judicial character at the instance of another.

Is it possible, then, seeing that this state of facts stands disclosed on the face of the pursuer's own summons and record on his behalf, to permit the progress of the action under it, while the sole defender called to answer to the conclusions of the action is the judge by whom the order complained of was issued?

The Lord Ordinary is of opinion that it is not so, and that it is his imperative duty at once to throw out the action as incompetently laid against the defender.

The Sheriff was not, and could not be, in the sense of the law, a party to the proceedings of which the pursuer here complains. He is the legitimate arbiter and judge of the rights of those whose interests are involved in any legal process before him, and is so, simply because he is not a party to such process. These proceedings were at the instance of another, and, as the Lord Ordinary thinks, that party, and those who acted under them, or some of them, are those against whom alone this action, if competent at all as laid, could have been directed.

As a test of this view, the question may be considered in relation to the supposition, that the defender, instead of meeting the action as he has done by a defence, had allowed decree to pass, in what way could the defender have suffered or have been affected by such a course? Certainly, in no respect whatever, so far as the conclusions of this action would reach. The reduction sought, if obtained, might and could only have affected the interests of those on whose application and certificate the order and license was granted. But these parties are not here in any character whatever, and there is no proposal to bring them here.

In this state of the case, the Lord Ordinary is of opinion that it is his duty to refuse altogether to enter, at the call of the pursuer, on the merits of the question raised in the conclusions of the summons, or to discuss points mooted at the debate, which may be important and difficult, until he shall have a party or parties before him who have a direct, pleadable, and legal interest to defend the procedure challenged.

Had the summons contained conclusions for damages against the present defender, as was the case in the noted instances of Haggart v. Hope, 1st June 1821, 1 S. 46—House of Lords— Shaw's Appeals, vol. 2, p. 125, and of Hamilton v. Anderson, June 11, 1856, 18 D., p. 1003—House of Lords’ Reports—Macqueen, 3, p. 363, the Lord Ordinary would have felt that he was called upon to deal with the case of the pursuer in an aspect and on a footing materially different from that in which alone he finds himself entitled to regard the proceedings.

But, taking the case as presented, no course seems to be open but to sustain those pleas in defence with which alone the present interlocutor deals.”

The pursuer reclaimed.

Campbell Smith (with him Lord Advocate), for him, argued—The plea of want of interest ought to have been stated against satisfying the production, and is now too late. Moreover it proceeds upon a false assumption of want of interest and, is bad in itself.

Solicitor-General and Shand, for the defender, were not called upon.

At advising,