Where different Actions arise upon the same fact, tending to the same end, the Pursuer cannot insist upon both.
John Buchanan, Writer in Edinburgh, v. John Menzies
Date: 15 February 1712 Case No. No 6.
A party prosecuted another, as for the crime of fraudulently intromitting with bank notes. He afterwards brought an action for them, only ad civilem effectum. This last was sustained, notwithstanding of the former.
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In a process at the instance of John Buchanan against John Menzies, for restitution of some bank notes belonging to the pursuer, which he alleged Mr Menzies had unwarrantably intromitted with;
Alleged for the defender; The pursuer had irregularly, without any process or intimation to the defender, caused sist one John Strachan before a Bailie of Aberdeen, who elicited from him a signed declaration upon oath, of what he knew concerning the defender's having of the notes, and how he came by them; which extrinsic examining and precognoscing in a civil cause, is a ground to assoilzie the party against whom that method was taken, and punishable as a practice of pernicious consequence, 14th July 1621, Livingston contra Galloway, voce Improbation.
The Lords repelled the defence; for they thought the practique, 14th July 1621, betwixt Livingston and Galloway ought not to be followed or made a precedent.
Forbes, p. 589.*** Fountainhall reports the same case:
John Buchanan, servant to Robert Campbell, writer to the signet, having received from his master L. 95 Sterling in bank notes, to deliver to another person; and he meeting with John Menzies, son to Sir William Menzies of Gladstones, and accidentally telling him his errant, being acquainted, they went in to drink, and either they were taken out of his pocket by the said John, or being dropt were found by him. Buchanan, after their parting, missed his notes, and went straight to John Menzies, and enquired if he had seen them, who denied it strongly; whereon they were put in the Gazette in 1708, and a premium offered to the finder. This matter continued dark for a year or two, till Providence ordered it, that one John Strachan, Sir William Menzies's servant, whispered it in some companies, that John Menzies had found the bank-notes thought to have been lost; whereon he is convened before a bailie; and, being examined, declares he heard Mr Menzies say he had found about that time bank-notes to that value. On this discovery, Mr Campbell, Buchanan's master, applied to John Menzies, and his father, who at last confessed his intromission with these notes; but added, that he had sent them back by a gentleman he had employed. This not being instructed, promises were made to repair the damage; but that not being performed, Buchanan applied to the Queen's advocate for a warrant to arrest him; which was done, till he found his brother Thomas caution to produce him; and, after many communings, reparation being shifted, Buchanan raised a process before the Lords, for restitution of his money, and L. 20 Sterling, as his damages. Alleged, The matter of this libel is criminal in a high degree; and though it might be likewise the ground of a civil action, yet you, have elected to insist criminally, by exhibiting a complaint to her Majesty's advocate; so no process can now be sustained, till the criminal accusation be first discussed, as clearly prejudicial, and not to be anticipate by this civil process. And which quadrates exactly with the common law, l. 54. D. de judiciis, and l. ult. C. de ordine judiciorum where prius de crimine judicandum quam de civili causa cognoscatur. 2do, Your libel is most irrelevantly founded on extrajudicial confessions, and other unconcluding circumstances; and Strachan's examination was contrary to law, the Lords having condemned such precognitions, either in civil or criminal cases, as dangerous and pernicious to ensnare unthinking people, no ways on their guard for such catches; and was so found, Livingston contra Galloway, voce Improbation; and prohibit by the claim of right, act 18th of the convention of the estates 1689. Answered, These defences have more the air of a dilatory trifling, than might have been expected in such a case, where he was deeply concerned, rather to vindicate and exculpate himself from a charge dipping on his reputation, than to procrastinate the plea, and disappoint the pursuer's just demand of his money; a bad requital for his lenity and forbearance. And to the first, It is a strange novelty, where a fact complained of produces both a civil and criminal pursuit, the party may not have his choice of the softest method to recover his money: And the very laws cited give this liberty that utraque actione licet experiri; and as to the extrajudicial declarations, we are not in that case; for Strachan's was taken auctore prætore, before a magistrate; and that case out of Durie is old and single, has no second; neither meets the affair in hand, which was to discover a concealment, ad rimandam veritatem, and in favours of one who was in damno vitando. The Lords repelled the dilators, and sustained the process ad civilem effectum, to make up the pursuer's loss.
Fol. Dic. v. 1. p. 185. Fountainhall, v. 2. p. 725.
