Scottish Court of Session Decisions

The appellant, Angus Mackintosh of Holme, brought an action in the Court of Session against the respondent, Patrick Arkley, one of the Sheriif-substitutes of the county of Edinburgh, concluding for reduction of “(1) An order granted by the respondent, on 13th June 1852, by which the respondent, on the application of Mrs Mackintosh of Holme, the appellant's mother, granted warrant for the removal of the appellant to the private lunatic asylum at Saughton Hall, and license to the keepers of the asylum to receive and keep the appellant there; (2) a separate license, issued by the respondent on the same day, authorising Drs John Smith and William Henry Lowe to receive and detain the appellant in the said asylum kept by them; and also an alleged renewal of the said license granted by the late John Thomson Gordon, Sheriff

Page: 577↓

of Edinburgh, on 30th July 1852, and all subsequent renewals thereof.”

The defender took an order to satisfy the production, and thereafter satisfied production in terms of the order. He lodged defences. Thereafter the record was closed on revised condescendence and revised defences. The defender having pleaded (1) the action having for its object only the reduction of proceedings in which the defender has no interest, is incompetent as directed against the defender; and (2) the pursuer's averments are not relevant or sufficient in law to support the conclusions of the action. The Lord Ordinary ( Jerviswoode) sustained these pleas, and dismissed the action. The pursuer reclaimed. The Second Division of the Court recalled the interlocutor of the Lord Ordinary; of new sustained the first plea in law stated by the defender; and dismissed the action. The Lord Justice-Clerk ( Inglis), with whom the other judges concurred, said that that plea ought to have been stated by the defender when called on to satisfy production. The defender ought not to have satisfied production, and had no right to do so, as what he put in was the absolute property of another person, over which he had no longer any control. But the plea being a plea of incompetency, whenever it was brought under the notice of the judge it was pars judicis to entertain it. As to the merits of the plea the Lord Ordinary was right. The defender had no interest in the matter, nor in the sustaining or reducing any warrant ever granted by him after it had once left his hands. Decree of reduction in this action could have no effect against the defender. Farther, the pursuer had no interest either. If he got the decree he sought it would have no effect on the warrant; and, if not already exhausted, the person holding the warrant would be as much entitled to put it in force as before that decree had been pronounced. And for any Court to entertain a question in the decision of which neither party had any interest, would be to throw contempt on judicial proceedings. As to the second plea, that was on the relevancy, and to entertain it would be to enter on the merits of the case. It was better that the judgment should not appear to enter on the merits at all.

The pursuer appealed, and stated the following reasons of appeal:—

“1. Because the plea in law which has been sustained by the interlocutor appealed against rests upon an averment of want of interest on the part of the respondent, which averment has not been proved and is denied by the appellant, and is contrary to the fact.

2. Because the said plea was, according to the 13 & 14 Vict., c. 36, sec. 7, stated too late by the respondent, and after he was personally barred from stating it by satisfying the production, and pleading on the merits of the cause.

3. Because neither the statutes applicable to madhouses nor the common law of Scotland render it incompetent to insist in an action against a Sheriff-substitute for an order pronounced by him illegally and maliciously, and without probable cause.

4. Because the interlocutor appealed against asserts in substance the proposition, that a Sheriff-substitute is not answerable, in an action of reduction, for any order that he may pronounce, however contrary to law it may be, and however corrupt his motives may have been, provided that some third party has asked, or is said to have asked, him to pronounce such an order.

5. Because the interlocutor appealed against seems to proceed on the assumption that the documents sought to be reduced were made by the defender in the discharge of his regular duties as a Sheriff-substitute, whereas it is alleged, and not disproved, that the said documents were not made by the defender in the bona fide and intelligent discharge of his public duties, but were made contrary to, and grossly in excess of, the powers conferred by the statutes, and at variance with all the known forms of judicial procedure, as well as maliciously and without probable cause.”

The respondent stated these reasons in support of the judgment appealed against.

1. Because the action is incompetent as directed against the defender, who was not the party by whom the proceedings complained of were adopted or carried into effect; and

2. Because the respondent having no interest in the order and license complained of, which was granted by him in his official capacity, the action, as an action of reduction only of his order, is incompetent as directed against him.