Scottish Court of Session Decisions

This was a suspension and liberation in which the complainer, Aitchison, sought to have a lawburrows (obtained against him by Thorburn, and under which he had been incarcerated) suspended. In the application for lawburrows, which was presented on the 17th May, it was alleged by Thorburn that the complainer Aitchison had threatened his life in the month of February last, and that, on the 15th May, he found him trespassing within his grounds with a loaded gun, when he (Aitchison) threatened to shoot him, and assaulted him by kicking him on the legs and throwing stones at him. In the note of suspension and liberation it was averred by the complainer Aitchison that, on the occasion last referred to, he was assaulted by Thorburn, and that the procurator-fiscal had in consequence raised a criminal prosecution against Thorburn, under which he was convicted and fined by the Sheriff, and that the application for lawburrows was malicious and without probable cause.

The Lord Ordinary on the Bills (Lord Manor) passed the note, and granted liberation as craved, adding this note:—

“ Note.— It is an admitted fact in this case that, so lately as the 25th May 1809, the respondent was convicted and fined in the Sheriff-court of Roxburghshire for an assault committed by him upon the person of the complainer on the 15th day of the same month; and it appears that, on the 17th May, just two days after the said assault, the respondent presented a petition to the Justices of Peace of the county, stating that he had just cause to dread harm to himself from the complainer, and setting forth various alleged threats used against him by the complainer in the month of February preceding, and more particularly that the complainer had threatened and assaulted him on the 15th day of May current, referring to the very occasion on which he, the respondent himself, was subsequently convicted of being the assailant and wrongdoer, and converting what had passed on that occasion into a ground of charge against the complainer. On the same day (17th May) the respondent appeared before one of the Justices and made oath to the verity of what was contained in his petition; and thereupon the Justice, without further inquiry, or giving the complainer an opportunity of being heard, proceeded upon this ex parte statement and oath to grant warrant for serving the petition on the complainer, and ordering him, within forty-eight hours, to find caution of lawburrows under the penalty of £25; failing which, to imprison him until caution be so found. It is plain that the respondent's petition, in its main and most material allegation, was not only without probable cause, but absolutely false; and the Lord Ordinary is of opinion that, on that ground alone, apart from all the other reasons set forth in the note of suspension, this note ought to be passed, and interim liberation granted.”

The respondent in the suspension reclaimed.

Solicitor-General ( Young, Q.C.,) and Stkachan for reclaimer.

M'Kie for respondent.

Aitchison objected to the competency of the reclaiming note, on the ground that the Lord Ordinary's interlocutor had been fully implemented by liberation without objection on the part of the reclaimer, and cited Masson, 13 S. 367.—Objection repelled.

The reclaimer then maintained that, until the allegations of malice and want of probable cause were established by legal and competent evidence, the lawburrows must be upheld by the incarceration of the complainer, or his finding caution; and that, so far from the conviction establishing the falsehood of the respondent's allegations, it was not in any way inconsistent with their truth. The complainer, after the hearing, offered to find caution of lawburrows to the extent of £10, and the Court accordingly recalled the Lord Ordinary's interlocutor, and remitted to him to pass the note only on such caution being found.

At advising—