An action of damages, founded on an acquittal in the Court of Justiciary, is not competent before the Court of Session.
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Colonel Crawford having received certain anonymous threatening or incendiary letters, of which he suspected Gemmil to be the author, brought him to trial before the High Court of Justiciary. But Gemmil having been acquitted by his jury, he instituted, on that ground, an action of damages against Colonel Crawford; in support of which he insisted, that it was not competent to have entered any claim for damages in the criminal court.
The Lords were of opinion, That this claim was competent before the Court of Justiciary, and only there; as it would be a solecism, for the one Supreme Court to pronounce a judgment founded upon proceedings held in the other. It was further observed, that the claim's not having been entered there, betrayed such a consciousness of its being ill founded, as would have precluded the present action, though otherwise proper; in the same manner as if the demand had been actually made in that Court and rejected.
The Court therefore dismissed the action.
Lord Ordinary, Alva.Act. Geo. Fergusson.Alt. J. Boswell.Clerk, Menzies.
Fol. Dic. v. 3. p. 346. Fac. Col. No 35. p. 56.
