John Ker, and the Trustee for His Creditors, v. The Agent for the Sun Fire-Office
Date: 17 December 1793 Case No. No 59.
A verdict of acquittal in the Court of Justiciary does not preclude a proof of the same facts, and by the same witnesses, in a civil action.
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John Ker having been suspected of wilfully setting fire to his own house, in order, to defraud the Insurers, a precognition was taken before a Magistrate by their Agent. Ker was afterward tried before the Court of Justiciary. The prosecution, though in the name of his Majesty's Advocate, was conducted and the expense of it defrayed by the Insuers.
The jury unanimously found the libel not proven.
Ker then made a claim against the Insurers for the loss, he had sustained by the fire. A submission was entered into, and the arbiters allowed the Insurers to prove, that the pursuer had wilfully set fire to his house. The witnesses examined in the Court of Justiciary were again examined; but the death of one of the arbiters prevented a decree-arbitral from being pronounced.
Ker then brought his claim before the Court of Session. The Insurers craved a proof of his guilt; and in support of the competency of the demand, they quoted the case, 27th November 1739, Buntein against Buntein, No 26. p. 14044.
The Lord Ordinary, found, that “the proof and verdict in the Justiciary trial are no bar to the defenders in this civil Court, from supporting their defence, by a proof of the pursuer's having actually been concerned in the burning of his own house; and therefore allowed a proof at large.”
In a reclaiming petition, Ker and the Trustee for his Creditors
Pleaded, Although the prosecution was in the name of the Lord Advocate, the defenders were the real prosecutors in the criminal court. Having thus joined issue upon the pursuer's guilt, they are barred exceptione rel judicatæ from demanding farther proof. The sentence of a competent court must be held as probatio probata of the facts which it establishes. In the consistorial questions of marriage or legitimacy, the Court would not allow the facts established by a final decree of the Commissaries to be contradicted in any consequent civil action. When a person is remitted by the Court of Session to the Court of Justiciary, as guilty of forgery, the latter proceeds entirely upon the sentence of the former. Had the verdict of the jury been against the pursuer, he could have brought no claim against the Insurers, and for the same reason the proof granted by the Lord Ordinary is incompetent. It is particularly hard on the pursuer, that those witnesses who have not only been precognosced at the instance of the defenders, a step of itself irregular, (10th August 1785, Fall against Sawers, voce Witness; 4th August 1788, Bogle against Yule,)* but who have afterwards beent wice examined, and have consequently had it in their power to frame a connected story, should again be brought forward.
Observed on the Bench ; If the pursuer had brought his claim in the Court of Session, and been successful, a criminal prosecution would still have been competent against him. On the other hand, a verdict of acquittal in the Court of Justiciary, even if the words employed by the jury had been “not guilty” instead of “not proven,” does not preclude the competency of the proof allowed; 4th December 1789, Stein against Bonnar*. If the pursuer
* Not reported, see Appendix.
had been accused of forgery, and had been acquitted, improbation might still have been proponed in the Court of Session.
The taking a precognition with a view to a criminal prosecution, does not preclude the examination of the persons precognosced in a civil action; 26th February. 1793, Wemyss, voce Witness.
The Lords, 28th November, refused this and a second reclaiming petition, without answers.
Lord Ordinary, Swinton.For the Petitioner, Geo. Fergusson, Honyman, Rae.Clerk, Home.
Fol. Dic. v. 4. p. 236. Fac. Col. No. 85. p. 138.
