Scottish Court of Session Decisions

The Lord President said—This application was presented to the Sheriff on the allegation that the apprentice had deserted his service. The Sheriff appointed the petition to be served on him, and ordained him to enter appearance within four days after service, under certification in case of failure of being held as confessed, and the prayer of the petition being granted. He did not enter appearance, and the Sheriff, in his absence and without proof, held him as confessed, and granted the prayer of the petition. The first ground of suspension is that there was truly no indenture, the document not having been signed by the apprentice's brother. I don't think that objection is sufficient to set aside the obligation which was undertaken by this young man, and which he was legally capable of undertaking. The masters may be in consequence minus a cautioner; but I see no other consequence of the want of the brother's subscription. But there is another objection of a more important kind. It is said that the sentence is illegal because it imprisons the suspender until he finds caution, which he cannot do, and because it was passed in his absence and not in his presence, when he might have had an opportunity of explaining to the Sheriff the cause of his absence from his work. Now, this application is a common law one, and not under the statute. It is presented for the purpose of obtaining implement of a contract which the apprentice had entered into, and which he was capable of entering into. I am therefore of opinion that this was a civil process, and that it was competent for the Sheriff to pronounce his first deliverance under the certification expressed in it. It appears that the apprentice was aware of the service of the complaint and of the certification, for although there was not personal service upon him, he states in his suspension his reasons for not appearing to answer. The next question is whether the Sheriff was entitled in his absence to ordain him to be imprisoned. It follows, from what I have said, that he was. Then comes the sentence itself. It is not a warrant to imprison him until he finds caution to fulfil all the conditions of the indenture, but only until he finds caution to return to his service and remain in it. It is not sufficient that he should return, because his having already deserted renders it probable that his return may just be the preliminary to another act of desertion. In the cases which were cited it is nowhere maintained that imprisonment until an apprentice finds caution to return and remain in his service is incompetent. I therefore think that the sentence complained of was competent and legal, and ought not to be suspended.

The other Judges concurred.

Lord Deas observed that the only novelty or difficulty in this case arose from the fact that the apprentice was cited and proceeded against in his absence, instead of being apprehended in the first instance. The sentence passed might appear startling, but it could not be pronounced illegal without overturning the law, which has been settled by a series of decisions extending over a century. In regard to the question as to whether it was proper to cite or apprehend a deserting apprentice, his Lordship thought that it depended on the circumstances of each case which course should be followed. In most of the recent cases the deserter had been apprehended, and it would be perilous, after what has been done, to say that it was incompetedt to do so. In some cases, such as where there was a combination among the workmen, or where they were in hiding, apprehension was absolutely necessary. Any other course would be useless or impossible. On the other hand, there is nothing to show that what has been done in this case is incompetent. Each case must be dealt with as it occurs. In this case, it is substantially admitted that there was desertion, and the same warrant would have been granted although the apprentice had appeared or been taken before he Sheriff.

All the Judges concurred in saying that if the complainer was willing to return to his service, the Sheriff would be justified in accepting the smallest possible caution, if he was satisfied that the apprentice was not in a position to find caution to any greater amount.