Scottish Court of Session Decisions

Subject_1 PUBLIC OFFICER.

Gibb and Keith
v.
Scott, Miln, &c

1740, Jan. 11.
Case No. No. 9.

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The Lords found the Justices of Peace's sentences iniquitous, and contrary to law; and found Williamson, the private party, liable for the L.5 Scots in the bill, and annualrents thereof, and expenses of diligence thereon and in the whole other damages and expenses of the pursuers, particularly the expenses of this process. But John Duncan, the Procurator-Fiscal, they found only conjunctly and severally with Williamson, in repetition of the L.10 Scots of fine paid, and no further, because he concurred only virtute officii; and as to the Justices, they found no sufficient evidence that the sentences proceeded from partiality or malice, and therefore assoilzied them, and also their clerk. This case was reasoned very long and fully, and what I mark it for is chiefly to show how delicate a matter we think it is to punish a Judge for a wrong judgment, even in a plain case; and as on the one hand no Judge, at least no inferior Judge, (who is not presumed to be a lawyer) ought to be punished for an error in judgment, for that happens in multitudes of cases even to the ablest lawyers and best of Judges, so on the other, a partial Judge should not only repair all damages, but deserves the severest punishment; and as partiality can hardly be otherwise proved than by the judgment itself, which may be so monstrously iniquitous, that it is impossible to excuse it by a pretence of ignorance or mistake, for that reason we have even fined Justices of the Peace for unjust and arbitrary imprisonments; without which it would be in the power of these inferior Judges to oppress the lieges, especially the poorest sort, without remedy. The difficulty therefore was to judge in this case, so as not to discourage gentlemen from accepting of those offices, and discharging their trust, and yet not put it in their power to oppress. What made the iniquity the more glaring here, was a circumstance not noticed in the information, but which appeared from the decreet, viz. that though Gibb did not tell Williamson before he got his bill of the cheat Bruce had been guilty of, yet he told it him at meeting, and asked his assistance to carry Bruce to prison, which he refused, and did not then demand back his bill; so that instead of Gibb's putting a trick upon Williamson, this last, by his process before the Justices, was taking a catch of him;—yet as there appeared nothing rigorous or cruel in the proceedings of the Justices, (men of good character) we rather presumed that they erred through ignorance. I confess, though 1 would not carry it so far as to punish the Justices by fining or otherwise, yet in as far as the action was rei persecutoria, I inclined to find them liable,—yet I easily yielded to the opinion of the other Lords who spoke, and there was no vote.