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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wilson v. M'Kellar [1896] ScotLR 34_208 (11 December 1896)
URL: http://www.bailii.org/scot/cases/ScotCS/1896/34SLR0208.html
Cite as: [1896] SLR 34_208, [1896] ScotLR 34_208
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SCOTTISH_SLR_Court_of_Session
Page: 208↓
Court of Session Inner House Second Division.
[Sheriff of Argyllshire.
v.
Facts:
Held that a petition to the Sheriff under sec. 30 of the Personal Diligence Act 1838 is a civil process, and does not require the concurrence of the procurator-fiscal.
Opinions that the term “summary complaint” in that section is not used in the sense in which it is employed in the Summary Jurisdiction Acts, but means a summary application ad factum preestandum as distinguished from an ordinary action.
By section 30 of the Personal Diligence Act 1838 (1 and 2 Vict. cap. 114) it is enacted “that if any person shall unlawfully intromit with or carry off the poinded effects, he shall be liable on summary complaint to the Sheriff of the county where the effects were poinded, or where he is domiciled, to be imprisoned until he restore the effects or pay double the appraised value.”
David Wilson, grain merchant, Greenock, raised an action in the Sheriff Court of Argyllshire at Dunoon against Donald M'Kefiar, baker, Kirn, and Sarah M'Kellar, his wife, in which he prayed the Court to ordain the defenders jointly and severally or severally to restore to the premises at Wood-burn Place, Kirn, specified articles of the appraised value of £17 belonging to the defender Donald M'Kellar, and in the event of the defenders failing to restore the articles to the premises within such period as the Court should appoint, to grant warrant to officers of Court to apprehend the defenders and commit them to prison, therein to be detained until they restore the effects, or paid the sum of £34 to the pursuer.
The pursuer averred—On 12th November 1895 he obtained a decree against the male defender for £91, 10s. On 13th March 1896 the defender was charged on the decree to make payment of £91, 10s. less £19, 8s. 11d. paid to account. Following on this charge the articles mentioned in the summons were poinded at their appraised value in the defenders' house at Woodburn Place, Kirn. On 8th June 1896 the pursuer obtained a warrant of sale of the poinded effects, which was served personally on the defender on 13th June. On 20th June the auctioneer proceeded to Woodburn Place to sell the poinded effects, but on arriving there found that the articles had been removed, having been sold by the female defender, with consent of the male defender, to Alexander Morris, baker, Port-Glasgow.
The defender pleaded, inter alia—“(2) The action is incompetent, in respect that the concurrence of the Procurator-Fiscal has not been obtained.”
On 7th August the Sheriff-Substitute ( Martin) repelled the 2nd plea-in-law for the defenders, and allowed a proof.
The defender appealed to the Sheriff ( Wallace), who on 29th Septemer 1896 recalled the interlocutor of the Sheriff-Substitute, sustained the 2nd plea-in-law for the defenders, and dismissed the action as incompetent.
Note.—“As regards the second plea that the action is incompetent without the concurrence of the Procurator-Fiscal, I have delayed giving judgment until I had an opportunity of ascertaining the practice in other Sheriff Courts. The result of my inquiry is that I find it to be the practice in the Sheriff Courts of Edinburgh, Glasgow, and Aberdeen, to obtain the concurrence of the procurator-fiscal in petitions for breach of poinding, and I am not prepared to depart from this general practice.… Having regard to what appears to be the general practice and the penal nature of the conclusions of the petition, I am unable to see my way to sustain the competency of the proceedings without the concurrence of the public prosecutor.”
The pursuer appealed, and argued—The concurrence of the Procurator-Fiscal was unnecessary. He had no concern in the matter, he being an officer of the Crown, with a duty to guard the fisc, and there
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being in this case no fine to be collected by him. The imprisonment craved was not asked as a punishment hut as a compulsitor to induce the defenders to restore the effects removed. The defenders could bring the imprisonment to an end at any moment— Dickson v. Bryan, May 14, 1889, 16 R. 673; Kennedy v. Cadenhead, December 1867, 5 Irv. 539. The statute in terms of which the complaint was brought did not require the consent of the procurator-fiscal to the proceedings. The argument that the procurator-fiscars consent was required in all cases where imprisonment was craved was not well founded. In Schedule A of the Summary Procedure (Scotland) Act 1864 a form was given of a complaint praying for conviction in terms of the Act, and for imprisonment and forfeiture, which complaint could be made by a private party without the concurrence of the procurator-fiscal. At common law also the Court might ordain a defender by whom goods had been illegally removed to restore them, and if he disobeyed the order he might be imprisoned for contempt of court upon application by the pursuer without the concurrence of the procurator-fiscal. Argued for the defenders—The defenders were here charged with an offence against a statute, and in the complaint against them there was a demand for imprisonment which rendered the action penal. In terms of section 3, sub-section (2), of the Summary Procedure (Scotland) Act 1864, the provisions of that Act applied, so that anything in the nature of a summary complaint must be brought in the form supplied by that Act. The consent of the procurator-fiscal was always required to complaints by private parties under the Summary Jurisdiction Acts. There was a strong analogy between the removal of goods poinded and a breach of interdict. In the latter case complaint by a private party was inept without the concurrence of the public prosecutor— Duke of Northumberland v. Harris, February 23, 1832, 10 S. 366; Usher v. Magistrates of Edinburgh, March 7, 1839, 1 D. 639.
At advising—
Lord Justice-Clerk—The Sheriff states that he proceeded on what he has ascertained to be the practice in the Sheriff Courts of Edinburgh, Aberdeen, and Dundee. There may be such a practice, and if so, I suppose it has arisen from the fact that process involving imprisonment requires in certain events the concurrence of the procurator-fiscal, and it has probably been assumed that whenever imprisonment is concluded for, this concurrence is necessary. As regards the procurator-fiscal, it is probable that in these cases the concurrence of that official was given as a matter of course, without consideration being given to the question whether it was necessary or not.
Be that as it may, in this case it is necessary to look at the form of process, and it is clear that it is not presented to obtain the punishment of the defender for a past offence, but the whole object of the petition is to have the defender ordained to perform certain acts, and if he fails to obey, to have imprisonment ordered as a compulsitor to the order pronounced. But this prayer for imprisonment is only an invocation of the power inherent in every civil court to ordain performance of acts within its jurisdiction, and in default to commit the defaulter to prison. A criminal prosecution is of an entirely different nature. It relates to an offence which is past and proceeds in modum pænae for the punishment of the offender, and “to deter others from committing the like crimes in all time coming,” as it was formerly expressed in indictments. Here a private individual complains to the Sheriff that goods which had been poinded to answer for a debt due to him have been removed from his reach by the owner, and he calls upon the Court to ordain the defender to restore the goods, and in default to commit him to prison until he obeys the order or pays a sum equivalent to twice the value of the goods removed by him.
So far as we have heard, there appears to be no authority for the view that the concurrence of the procurator-fiscal is necessary. It is quite true that in the statute the words “summary complaint” are used, but there is no authority for the statement that these words are so appropriated to a criminal complaint for punishment of an offence that their use alone is sufficient to indicate a process of this character.
On the whole matter I am clear that the Sheriff has erred in sustaining the second plea-in-law for the defenders.
In one sense this complaint is based upon the Personal Diligence Act. It seeks to vindicate by a decree the right conferred upon the pursuer by statute of demanding the restoration of the goods which were poinded for the debt due to him, but which were removed by the defenders. The application of the creditor is to be made by way of “summary complaint,” but there is nothing in the statute to indicate that the complaint is to proceed at the instance of anyone except the private individual who has been injured, and who applies to the Court to have his wrong redressed. The Procurator-Fiscal is not interested in the proceeding.
I quite appreciate the argument of Mr M'Lennan based upon the Summary Procedure Act, and if this were a proceeding in modum pænae it might require the concurrence of the Procurator-Fiscal. But this is not a proceeding in modum pænae, but only an application to the Sheriff which asks that if the defender does not return the goods he shall be imprisoned. Imprisonment in such circumstances is not inflicted
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I think it is a mistake to suppose that this statute necessarily uses the term “summary complaint” in the sense in which it is employed in the Summary Jurisdiction Acts. A summary complaint such as this means rather a complaint before the Sheriff which, requiring despatch, is not required to submit to the delays which attend a case going through the ordinary roll. I think that is the sense in which it is used here.
I agree with Lord Trayner that the words “summary complaint,” as used in the 30th section of the Personal Diligence Act 1838, simply mean a summary application ad factum præstandum as distinguished from an ordinary action. They are used in the same sense in regard to removings in the 8th section of the Sheriff Court Act of 1838; and in the schedule of the Small Debt Act 1837 the initial event in a civil cause is described as a “summons of complaint.” The process is a civil and not a criminal process, the imprisonment concluded for being not in modum pænæ, but in order to compel restoration.
Even if such an application could be competently brought under the Summary Jurisdiction Acts, which may be doubted, it would still be a civil and not a criminal process, and might be sued by a private person without the concurrence of the procurator-fiscal.
I agree with all your Lordships that the concourse of the Procurator-Fiscal is not essential, and that the judgment of the Sheriff should be recalled.
The Court pronounced the following interlocutor:—
“Sustain the appeal and recal the interlocutor appealed against: Affirm the interlocutor of the Sheriff-Substitute dated 7th August last; and remit the cause back to the Sheriff to proceed therein as accords.”
Counsel for the Pursuer— Watt— Horn. Agent— A. C. D. Vert, S.S.C.
Counsel for the Defenders— M'Lennan. Agents— Miller & Murray, S.S.C.