Scottish Court of Session Decisions

Quantities of silk thread having been stolen from the manufactory of the advocator, Richmond, in Glasgow, to a considerable extent, and certain parties being suspected of being concerned therein, some of the workmen in his employment formed a plan, with a view to their own protection, for the purpose of discovering the thief or resetter of the stolen property. Some bobbins of silk were to be marked, and were then to be offered by certain of the workmen to one Mackinlay as stolen, in order that he might take and sell them, and that they should then ascertain to whom he should sell them. This plan being prosecuted, was successful as far as related to Mackinlay, who took, as in the course of being stolen by the workmen, four bobbins to sell and to share the price with them. He then went to the house of the respondent, Thomson, a worker in silk, who was not then within, and left the four bobbins. Thereafter, upon information given to the police, a search was made in the house, and the goods in question were found hidden under a number of empty bobbins. Thomson was apprehended and imprisoned in the police-office, on a charge of reset of theft, but from want of evidence was discharged. To these proceedings of his workmen, Richmond was privy and gave his sanction.

Thomson then raised action against Richmond before the Magistrates of Glasgow, alleging that he had entered into a conspiracy, along with his workmen, to ruin the pursuer's character and credit, in pursuance of which the above proceedings had been adopted, and concluding for damages. Richmond's defence was a denial of the libel, so far as regarded himself.

A proof was allowed to the pursuer, from which it appeared that no conspiracy of the nature alleged had been gone into, but that the plan above mentioned had been devised and prosecuted with the sanction of Richmond; and various circumstances appeared in evidence which might be construed as tending more or less to throw suspicion upon Thomson. The defender led no proof.

The magistrates, having pronounced certain findings, decerned against Richmond for £20 of modified damages.

In an advocation by Richmond, the Lord Ordinary pronounced the following interlocutor, with the note subjoined: ^*—“Finds it not proved

_________________ Footnote _________________

* “It may perhaps be thought, at first sight, that there is no very essential difference between the finding in the interlocutor of the inferior court and the Lord ordinary's grounds of judgment. But he is unable to leave the case upon those findings, for two reasons. Ho thinks it necessary, in justice to the advocator, considering the strong charge set forth in the first part of the libel, of which the Lord Ordinary sees no evidence at all, but quite the reverse, that some judgment should be pronounced on that part of the case; because otherwise an impression may be left that it is found to be true, as it was accordingly maintained to be in the debate. The liability to damages in consequence of his having given his sanction, from want of due consideration, to an illegal apprehension and detention, is of a very different character, from the charge of conspiracy libelled. But farther, the Lord Ordinary is not prepared to decide against the advocator in such a penal case, upon the actings of a different person, James Giffen, merely because he was his foreman, the pursuer of the action not having called that person as a witness, though the action was not directed against him, to prove that he acted by the authority of the advocator. It is true that the advocator might have called him. But it was the duty of the pursuer to prove his case, and if he meant to rely on the acts of Giffen simply, he ought to have proved the authority given to him in the fullest manner. The advocator might not choose to call a person so evidently interested to throw the responsibility on him. The Lord Ordinary, therefore, thinks it much safer to put the case on the facts proved as to the advocator's own conduct.

“ On the evidence in the case generally, the Lord Ordinary has a very different opinion from the view which was pressed upon him in the debate. Seeing the very extraordinary practices of the pursuer with most of the material witnesses, he must own that he has little confidence in their testimonies; and with regard to the witness M'Kinlay, he certainly thinks that he has so far departed from the truth, if the other witnesses are to be believed, that he is unworthy of credit. The case seems to be, that the workmen having induced the advocator to give his consent to a contrivance which, legitimately proceeded in, would not have been illegal, had, upon discovering the blunder which they had committed, become very willing to throw the responsibility on their master, and if there was any conspiracy in the matter, there is too much appearance of something of that kind between them and the pursuer. Nevertheless, the Lord Ordinary is of opinion that there is evidence sufficient to implicate the advocator in an accession to the illegal apprehension of the pursuer.

“ The original design of the workmen was not illegal. They suspected M'Kinlay of having stolen silk-bobbins, and they wished at once to verify their suspicions on that point, and to discover the person who might he in the practice of resetting such goods. According to the evidence of Murray and Wylie, there was no mention of or allusion to the pursuer in the conversation with the advocator. But, supposing that he was suspected, which is the utmost which could be made of the meagre evidence tending that way, would it have been illegal to try to discover whether the pursuer would receive, at an undervalue, goods believed to have been stolen? Surely not. The Lord Ordinary thinks it dear on all the evidence, not excepting the testimony of M'Kinlay, that when he received the bobbins, and undertook to dispose of them, he did and must have believed that they were not fairly come by. Hence his jealousy when he saw Murray in the neighbourhood. Hence the private way in which he went alone to the pursuer's house. But observe that there is no trace even in his testimony, and far less in the other evidence, of any design communicated to him, or even conceived, of putting the bobbins in the pursuer's house without his knowledge. Beyond all doubt he went for the purpose of really selling them; and by his account to the other men at the time, he pledged them with the pursuer's wife for two small sums. If the parties had only made the right use of the information thus obtained, there would have been no wrong.

“ For the right use of it was to do and to say nothing mere then, but only to be on the watch in case an actual theft should afterwards be committed, and then to trace the goods to the resetter if they could. The Lord Ordinary does not mean to say that there is here any evidence on which it wonld be just to infer that the pursuer either had received these bobbins, believing them to be stolen, or would have received others knowing them to be stolen. On the contrary, a main ground of his judgment against the advocator is, that in sanctioning the proceeding which did take place, he put the pursuer under a public charge of reset of theft, in circumstances in which it was utterly impossible that either his guilt or his innocence could be judicially established. For any thing that appears, whatever may be believed as to the transaction with the wife, who might not well understand it, the pursuer himself might have rejected any such proposal as that which M'Kinlay meant to make to him. And therefore the Lord Ordinary has no idea that there is here any evidence on which even the pursuer's willingness to commit such an offence can be inferred. His contradictory statements to the officer may raise suspicion, but they go no farther. But without making any such assumption, he thinks that tho men had seen enough to entitle them and the advocator to form reasonable suspicions if a case of theft afterwards occurred.

“ But, instead of using their information thus quietly, the men, or Giffen in aid of them, called in a police-officer, knowing that there had been no theft. M'Kinlay was apprehended; and then, if Dow, the officer, speaks truth, he expressly communicated with the advocator on the whole matter before doing more, and, with his knowledge and concurrence, proceeded to search the pursuer's house, to apprehend his person, and to give in to the police-office the charge of reset of stolen goods, the property of Richmond and Company. Now, it does appear that the advocator had from the beginning entertained the idea that such a proceeding might take place; for he saw and approved of the marks put on the bobbins, and expressed his belief that they would be got back, which was really impossible legally, if M'Kinlay, with his consent, and that of the men, sold them, at whatever price, to a third party. It is not surprising, therefore, that he was under the same error when Dow went to consult him before searching the house and apprehending the pursuer; and that, instead of objecting to it, he encouraged him to proceed. Dow, it should seem, believed that a theft had been committed, and lie was not undeceived by the advocator. There is also some evidence that the advocator was himself at the police-office, at least once. But, at all events, it is clear that he was aware of what was doing, and did nothing to stop the very erroneous process which he had, by his previous conduct, sanctioned and encouraged.

“ For these reasons the Lord Ordinary cannot alter the judgment of the magistrates in its main substance; and he is also of opinion that nothing in his interlocutor is sufficient to affect the question of expenses, when it is so substantially affirmed.”

that the advocator entered into any conspiracy with his workmen, or any other person, of the nature set forth in the summons; but, on the contrary, so far as the evidence can be relied on, finds it proved that no such conspiracy existed: Finds it proved that a certain scheme or contrivance, not in itself illegal, was devised by certain of the workmen in the defender's employment, for the purpose of discovering, “with a view to their own protection, the person or persons who had stolen, or criminally resetted, certain articles of property previously missed from their possession: And finds it proved that the defender did, at their request, give his sanction or consent to their carrying that design into effect: Finds that such his sanction or consent was given without due caution as to the manner in which it might be acted on: Finds it proved that, in the prosecution of the scheme thus formed and sanctioned, the pursuer was illegally apprehended and imprisoned on a charge of reset of theft, under circumstances in which there neither was nor could be any legal ground for such, a charge: Finds it proved that the defender, however he might act under the erroneous belief that the articles which had been delivered to Robert M'Kinlay, having been traced to the house of the pursuer, there might be ground for such a charge, did in fact authorize or encourage and abet the police-officer who had been called in to proceed to search the pursuer's house, and apprehend his person, and that he afterwards gave his countenance to the proceedings which followed: Therefore finds that the defender did thereby render himself liable as an accessory for the consequences of those proceedings, and the illegal imprisonment of the pursuer: Finds, that whatever suspicious circumstances might emerge with reference to the original object of the plan devised by the workmen, no defence on probable cause could arise to the action, in so far as it was laid by the second alternative of the libel, simply on the fact of an illegal charge and imprisonment at common law, in respect that the advocator, and all the parties concerned, knew that no act of theft had been committed, and were bound to know that there could be no reset of theft: Therefore, on the whole matter, remits to the magistrates of Glasgow, with instructions to recall their interlocutors in the terms in which they are expressed; but, in respect of the facts proved, as found by this interlocutor, and subject to the findings therein, of new to find the defender liable in damages and expenses; to modify the damages to £20, and decern for the same; and to decern for the expenses in the inferior court as already taxed and modified, aud decerns accordingly: Finds the advocator liable in the expenses of the advocation.”

Richmond having reclaimed, the Court (May 26, 1836') were equally divided as to the import of the proof, Lords Justice-Clerk and Glen-lee agreeing with the Lord Ordinary's interlocutor and note, while Lords Meadowbank and Medwyn had difficulty in holding Thomson entitled to any damages. The other Judges were accordingly consulted, and the following opinions returned:—