Scottish Court of Session Decisions

This is a suspension presented by the Rev. Edward Randall, of St Ninian's Chapel, Castle Douglas, of a charge given him to find caution of lawburrows that the respondent, Lieutenant General Thomas Henry Johnston of Carnsalloch “shall be kept harmless and scatheless in his body, possessions, goods, and gear, and in noways molested or troubled therein by the complainer.”

The complainer is incumbent of the Episcopal chapel at Castle-Douglas. The respondent is one of the trustees thereof. They seem to have recently quarrelled with each other in consequence, as the complainer alleges, of a change of the second service from the afternoon to the evening. On 12th January 1867, General Johnston presented a petition to the Sheriff of Galloway, in which he stated that he has just cause to dread harm to himself from the said Rev. Edward Randall, he having, on the 14th day of December last, in St Andrew Street of Castle-Douglas, interrupted the petitioner in his progress along said street, and walked in before him, and with violent and threatening gestures put the petitioner in fear of an assault, and he dreads a repetition of a similar

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offence and bodily harm from the respondent, to all which the petitioner is ready to depone.”

He thereafter deponed that his statement was true, and the Steward-Substitute thereupon ex parte ordained the complainer to find caution of lawburrows under a penalty of £50.

The complainer then suspended, on the ground chiefly that the proceedings had been taken by the respondent maliciously and without probable cause. No caution was offered. Lord Mure refused the note, for the reasons stated in the following

“ Note.—The Lord Ordinary has refused this note, in respect of the decisions in the case of Barbow, 11, 1825, 3 S. 647; and Baxter, June 16, 1827, 5 S. 752, in both of which it was ruled that it was not a relevant ground for suspending a charge on letters of lawburrows regularly obtained, to allege that they have been taken out maliciously. The cases are very shortly reported, but the Lord Ordinary has examined the session papers, and he finds that in the case of Barbour the decision was pronounced upon written argument, and that, although the note was presented on caution, the petition was refused without answers. Nothwithstanding, therefore, of the older case of Smith v. Baird, January 26, 1799, M., 8043, relied on by the complainer, the Lord Ordinary has considered himself bound, in obedience to these later authorities, in which the case of Smith appears to him to have been brought under the consideration of the Court to refuse the present note.

“D. M.”

The complainer reclaimed.

Young and Watson for the reclaimer.

Monro and Shand for the respondent.

The following authorities were cited:—Ersk. 4, 1, 16; Bankton 1, 10, 157; Stair 4, 48, 2; Barclay's M'Glashan, p. 408-9; Stat. 1424, c. 2; 1449, c. 113; 1581, c. 117; 1661, c. 38; Barbour and Others v. Hogg, 11th March 1825, 3 S. 453 (647); Taylor v. Taylor, 25th June 1829, 7 S. 794; Gadois v. Baird, June 1856, 28 Jurist, 682.

After discussion, the complainer stated that he was willing to find caution of lawburrows binding him to keep the peace towards the respondent in common form under a penalty of £50 sterling ad interim, and until the suspension shall be finally disposed of.

On this offer being made, the court recalled the Lord Ordinary's interlocutor, and remitted to him to pass the note. The Lord President observed that this case on the passed note would form a very fitting opportunity for considering the whole law on the subject, and putting it on a proper footing.