Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0153.html
Cite as: [1876] SLR 14_153, [1876] ScotLR 14_153

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SCOTTISH_SLR_Court_of_Session

Page: 153↓

Court of Session Inner House First Division.

Saturday, December 9.

[ Bill-Chamber.

14 SLR 153

M'Dermott

v.

Ramsay.

Subject_1Master and Servant
Subject_2Apprentice
Subject_3Meditatio fugæ
Subject_4Desertion.

Process — Sheriff Court — 39 and 40 Vict. cap. 70,sec. 6.
Facts:

Held that it is a competent proceeding to apprehend as in meditatione fugœ an apprentice who has deserted his service with the intention of proceeding to America, and to imprison him till he find caution de judicio sisti in an action to have him ordained to return to his service and continue in it.

The form authorised by sec. 6 of the Act 39 and 40 Vict. cap. 70, is the proper form for all civil proceedings in the Sheriff Court.

Headnote:

The complainer M'Dermott, a lad of sixteen, was bound apprentice to the respondent Ramsay, a smith and Cartwright, in July 1875, under a contract of indenture for five years. There was a penalty of £20 stipulated for non-performance. On 4th November 1876 he deserted his service, and took away his tools with him. Ramsay raised an action in the Sheriff Court by petition and condescendence, as provided by the 6th section of the Sheriff Courts Act of 1876, setting forth that he believed M'Dermott to be in meditatione fugæ, and that he was about to raise an action against the said M'Dermott, “founded upon the said contract of apprenticeship, to have the defender ordained to return to and continue in the service of the pursuer during the term of his apprenticeship, and to find caution to that effect, or otherwise to pay to the pursuer the penalty of £20 sterling,” and praying the Court to grant warrant to apprehend the defender, to examine and commit him to prison till he should find caution de judicio sisti.

Warrant was granted, and the defender having been apprehended and examined, and thereafter committed to prison till he should find caution de judicio sisti, a note of suspension and liberation was brought before Lord Rutherfurd Clark, Lord Ordinary on the Bills. The Lord Ordinary passed the note, but refused to grant liberation hoc statu.

The complainer appealed, and argued—There is no authority for such a procedure. The proper course was under 38 and 39 Vict. cap. 90, sec. 6. It is not competent to apprehend on such a warrant where the action to be raised does not conclude for a sum of money. Besides, the procedure adopted here is not applicable. Summary procedure before any magistrate was, previous to the Sheriff Courts Act 1876, competent, and therefore that Act does not now regulate the form of procedure. If caution is to be found, the complainer's own bond should be sufficient— Cameron v. Murray & Hepburn, 8th March 1866, 4 Macph. 547 ( Lord Deas opinion).

The respondent argued—This case was peculiar, as the complainer here was anxious to leave the country. That intention would have made proceedings under 38 and 39 Vict. cap. 90, futile; it also made the complainer's bond of no avail. Any one who is under a civil obligation, be it ad factum præstandum or for a sum of money, may be arrested on such a warrant as this.

At advising—

Judgment:

Lord President—This is a kind of question in which one is extremely anxious to hear everything that can be said in favour of the apprentice, but I am sorry to say I can see no ground whatever for his liberation.

With regard to the objection to the form of proceedings, it is difficult to see on what that is founded. In the Sheriff Courts Act of last year one form is prescribed for the forms ordinarily in use previously, and it is intimated that this is to apply to every case whether it would have originated by summons or by petition under the old

Page: 154↓

forms The 6th section provides—“That every action in the ordinary Sheriff Court shall be commenced by a petition.” In the interpretation clause the term “action” is defined to include “every civil proceeding competent in the ordinary Sheriff Court.” Now, in the former procedure there were two classes of proceedings, the one beginning with a summons, called Actions, the other beginning with a petition, and called Summary Proceedings. The term “action” in this statute is made to include every case, and therefore this new form is applicable to this case as to every other.

With regard to the nature of the remedy adopted here, I see no reason why an application to apprehend a person in meditatione fugm should be incompetent where the action proposed to be instituted against him is one ad factum prœstandum. I see no reason, and I know of no authority, for holding that it is incompetent. The action to be brought here is for the fulfilment of the indenture entered into by the complainer. There will also, of course, be a conclusion for a penalty to the amount of the damage suffered by the master, but that does not alter the nature of the case, and therefore I see no reason for doubting that an application to imprison a person in meditatione fugœ to answer in an action of this kind is competent.

But one is unwilling to shut the door against the possibility of an arrangement, and after what Mr Alison has told us of the proposals made by the master, I venture to suggest to your Lordships that the case should be allowed to stand over for a week.

Lords Deas, Mure, and Shand concurred.

Counsel:

Counsel for Complainer — M'Kechnie. Agents — Walls & Sutherland, S.S.C.

Counsel for Respondent — Alison. Agents — Adamson & Gulland, W.S.
1876