Scottish Court of Session Decisions

The pursuer was, on 13th September 1864, an inmate of the New Monkland Poorhouse. The defender is schoolmaster of the parish and a member of the Visiting Committee of the Poorhouse. The pursuer alleges (1) That on said date the defender assaulted him; (2) That he thereafter falsely and maliciously gave information to a police constable that the pursuer had assaulted him, in consequence of which the pursuer was apprehended; and (3) That he falsely and maliciously gave information of the said assault to the Procurator-Fiscal in consequence of which the pursuer was imprisoned and detained for two days. He now proposed for trial three issues, embodying these separate grounds of action.

There were originally two actions of damages in regard to this matter—one against the present defender, and the other against Alexander Montgomery, also a member of the Visiting Committee of the Poorhouse. Both defenders pleaded that the actions were incompetent in the Court of Session in respect the 86th section of the Poor-Law Amendment Act (8 and 9 Vict. c. 83) provides that all actions on account of anything done “in the execution of the Act” shall be brought before the Sheriff Court. Lord Kinloch repelled the plea in both cases, but on reclaiming notes the Court, on 7th June 1865, dismissed the action against Montgomery, and in this case repelled the defender's plea-in-law only in so far as it imported that the action should be in hoc statu dismissed. The chief difference betwixt the two cases was that in this case the defender was said to have assaulted the pursuer, whereas in the other case it was only averred that Montgomery was present and saw the assault upon the pursuer committed.

The defender did not object to the issue founded on the assault; but he said that in regard to the other two issues the case was in precisely the same position as that of Montgomery, which had been

Page: 101↓

dismissed. He also urged as a separate objection to the third issue that a person, though he did give false information to a Procurator-Fiscal, was not liable for damages in respect of what was done after the Fiscal had opportunity to inform himself on the subject. The pursuer replied that this case was different from Montgomery's, because the assault could not be pretended to have been committed in execution of the statute, and what followed was all bound up with it. What the defender did was to assault the pursuer, and having done so, to go to the police and the Fiscal, and pretend that the pursuer had assaulted him.

The Court unanimously disallowed the second and third issues, holding that in regard to them this case was not distinguishable from that of Montgomery. If it was the fact that the information to the police was given as represented by the pursuer, the whole could be proved at the trial under the first issue as part of the res gestæ.