Scottish Court of Session Decisions

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^* “ Note.—The statements of the pursuers are not very explicit, either in the summons or condescendence; but one thing is sufficiently clear, that the grounds of action, as averred in the record, differ materially from those laid in the summons. The foundation of the charge against the defenders in the summons is, that on the 28th of April, a complaint was insisted in by one of them, Hugh M'Culloch, designing himself procurator fiscal of the burgh of Airdrie, and by Thomas Main, blacksmith there, before the defenders, the magistrates of the burgh, that the complaint related to the right of the defender to use a certain well in or near Airdrie: ‘That the subject matter of the said complaint was of the nature of a dispute as to civil right;’ and that the defenders, the magistrates, ‘had no jurisdiction to take cognizance of the same,’ &C. It is then set forth, that, in the course of the proceedings, the only evidence allowed by the magistrates related not to the pursuer, Grace Hay, improperly using the said well, ‘but to a matter totally different,’ namely, in regard ‘to some abusive language alleged to have been offered by the said Grace Hay,’ &c. That the magistrates refused to bear evidence on the part of the pursuers, and wrongfully, illegally, and oppressively ‘pronounced decree against her, for the sum of two shillings and sixpence, and two shillings of expenses,’ and granted warrant for imprisoning her until she should make payment of the sum decerned for, and that she was afterwards imprisoned, &c.

“The ground of action here evidently is, that, in a complaint before the magistrates, on a question of civil right, in which they had no jurisdiction, they, after taking evidence on a matter not within the complaint, and refusing to hear the pursuer, decerned against her, granted warrant of imprisonment on that decree, and which warrant was put in execution. On hearing parties on the summons and defences, it appeared to the Lord Ordinary very unlikely that the summons, as laid could be sustained; but he was induced to order a record to be made up, by the positive assurances on the part of the pursuers, that the ground of action, as laid, would be supported. It now turns out that these assurances were ill founded. The averments in the record form a case essentially different. The pursuer, Grace Hay, although still averring that she was irregularly cited, clearly admits that the only complaint insisted in on the day libelled, was the complaint quoted in the defences (p. 4), involving no question of civil right, but a charge of rioting, throwing stones, putting stones into the pump well, and disturbing the public peace of the burgh; and she further avers, that upon this complaint the magistrates refused to hear evidence, and ultimately pronounced sentence, ‘fining the said Grace Hay,’ and ordaining her to be imprisoned; it being further alleged that these proceedings were illegal and oppressive, and were carried through by all the parties, including the magistrates, for the purpose of deterring the pursuer from asserting her right to use the well. The summons proceeds on the alleged defect or abuse of the powers of the magistrates in a question of civil right, while the pursuer's case on the record rests on the alleged irregularities of the procedure in a criminal complaint, and the perversion of the powers of the magistrates, in receiving and determining that complaint to an illegal purpose, viz. that of promoting the pecuniary or patrimonial interests of one set of parties to the prejudice of those of the pursuer. Whatever may be the relevancy of this last charge as a ground of action, it is clearly not that laid in the summons.”