Scottish Court of Session Decisions

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^* “The Lord Ordinary cannot find any authority for holding that an express allegation of malice is necessary in any case, either for wrongful arrest and imprisonment on a meditatio fugæ warrant, or in any analogous case where injury has been done to person or property under a warrant (however legal and regular) issued without any judicial cognizance of the merits, and at the mere will and discretion of the party who applies for and puts it to execution.

“In the case of Clark and Thomson in 1816 (reported in 1 Murray, 161 and 180), the Court of Session found damages due (remitting to the Jury Court merely to assess the quantum) inter alia, for an arrest and detention on a meditatio fugæ warrant, without any proof, or even allegation of malice or irregularity in the procedure; and, in the case of O'Reilly (2 Murray, 414), which was also one of meditatio fugæ, the issue was merely, whether the warrant was wrongfully applied for and executed. In the case of Battersbey, again, 1st March, 1828, which was very deliberately considered in this Court (6 Shaw, 667), it was expressly found ‘that the pursuer was not bound specially to allege malice against the defender, or that the charge against her was preferred without probable cause,’ the action having been laid mainly on the ground that upon a false allegation of having violated a particular statute, she had been arrested and detained in custody, under a warrant obtained from certain justices of the peace.

“There is plainly a near analogy between this case and those of wrongful interdicts, arrestments, or sequestrations, which frequently issue in initio litis, and without any discussion of the merits, and being taken at the discretion of the party, are commonly held to be executed periculo petentis, and consequently infer liability for damages, if injury is actually sustained without any allegation of malice. The case of interdict, it may be observed, has more apparent claim to be considered as privileged than the present, as no interdict is granted without some judicial investigation, and the establishment of at least a prima facie case for the application, while, though this may be said to be the case as to that part of the proceedings against persons in meditatione fugæ, which relates to the alleged purpose to leave the country, there is no such prima facie investigation as to the fact of a debt being truly owing; the mere oath of the applicant, if distinct and positive, making it imperative on the magistrate to make the necessary order. Yet, in the case of Robarts against Lord Roseberry (4 Murray, 1), damages were awarded for the wrongful imposition of an interdict on the tenant of a lime quarry, without the slightest imputation of malice; and, in the latter case of M'Arthur Moir, and Hunter, 16th November, 1832 (11 Shaw, 32), though the ultimate decision was in favour of the defender on the special ground, ‘that the interdict had been applied for not to invert, but to continue the previous state of possession,’ the doctrine was generally laid down by the Court, ‘that interdicts are obtained periculo petentis, and the party using them is liable to indemnify the other party, if he be wrongously interdicted,’ and it does not appear that the slightest countenance was there given to the notion, that special malice must be established.

“Damages were awarded for the arrestment of a vessel, on an Admiralty precept in Clark and Thomson's case, already referred to; and for sequestrations laid on for more rent than was due in that of M'Leod v. M'Leod, 11th February, 1829 (7 Shaw, 300), though no malice was alleged in either case; and, in like manner, relevancy was found as for damages in a case of summary ejection on a sheriff's decree, there being no such arrear of rent as to justify the proceeding, though there was no imputation of malice or mala fides; Urquhart, 28th May, 1824 (3 Shaw, 84).

“The case of Arbuckle, referred to on the other hand (3, Dow, 180), as well as that of Richardson, 1st June, 1833 (10 Shaw, 607), where it was held necessary to libel malice, were cases of criminal prosecutions, and went upon the principle of encouraging good citizens to bring public delinquents to justice; while that of Nairne, 18th July, 1832 (10 Shaw, 844), was decided entirely on the words of the police act, out of which it arose. An issue, no doubt, was taken on malice, in Clyne v. Duffus (4 Murray, 558), for improper use of diligence, and in Watt v. Blair (4 Murray, 571), for an alleged malicious seizure of lintseed; but under very peculiar circumstances in both cases; while in that of Duff v. Bradberry, 19th May, 1826 (4 Shaw, 22), it is manifest that the action of damages was ultimately dismissed, not so much because malice was not averred, as because no relevant grounds either were or could be libelled consistently with the facts admitted on the record; the action, on the dependence of which the arrestment had been executed, and the meditatio fugæ warrant applied for, having been derided with expenses against the pursuer of the damages.

“In deciding that It is not necessary in this case, to aver express malice, and appointing the preparation of the case to proceed, the Lord Ordinary does not mean to prejudge the right of the parties to suggest, or of the issue clerks to report, such issues as may seem fit consistently with this particular finding; and in whatever terms the issues may be reported, he thinks it right to say, that he conceives the substantial question for the jury must be, whether on the one had the defender acted (if not maliciously) at least with blameable rashness or negligence; or on the other hand had reasonable grounds and probable cause for all he asserted? When it is said that a party sues out and executes a precautionary warrant of this kind, at his peril, this does not mean that he must always pay damages, unless he shall actually succeed in the action he is about to raise, but only that he must show that he had fair and reasonable grounds for raising it, and that his failure in such action will place the onus of so showing upon him. This is well explained in the opinions of Lords Balgray and Gillies, in the case of M'Arthur Moir, and Hunter, already referred to (11 Shaw, 32), and by Lord Gillies in Bradberry's case (4 Shaw, 24), and seems to have been in view in framing the second issue in that of O'Reilly (2 Murray, 414). Upon the strength of that last precedent, Indeed, the Lord Ordinary did suggest to the parties in this case, whether there would be any objection to one issue, whether the defender deponed to the debt, &c. without probable cause? But the pursuer, while he did not seriously dispute that this would be the true question for the jury, contended that the onus should not be on him, since he already held a final decree, establishing that there was no debt, and consequently raising a presumption against the bona fides or discretion of the defender, to which there was nothing parallel in the case of O'Reilly. Perhaps the defender might take a counter-issue, and undertake to prove that be acted without malice and with probable cause. He might prove this indeed without an issue, but probably nothing short of putting it formally in issue would satisfactorily settle the sufficiency of such proof to entitle him to a verdict.

“In the mean time, the Lord Ordinary leaves all this open. He only means to decide that this is not properly a privileged case, merely because the wrong was done through the instrumentality of a formal judicial warrant. When such a warrant can be had for the asking, and imports no judicial sanction or cognizance of the grounds on which it is sought, there seems no reason for regarding it as other than the private act of a party, for the consequences of which he must answer as for his other private acts; and the course of practice in cases of this description, as well as in the analogous cases of interdict, arrestment, sequestration, &c., seems sufficiently to warrant this conclusion. He does not think that the rules of law as to injurious words used in the course of litigation have any true bearing on the present question, and would not think himself justified in borrowing any thing from the law or practice of England, as to arrest in civil suits, which seem to rest on principles fundamentally repugnant to those which we acknowledge,”

A record was thereafter made up, and the cause was remitted to the issue clerks, with a view to the preparation of issues.