Scottish Court of Session Decisions

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Cite as: [1875] ScotLR 12_398, [1875] SLR 12_398

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SCOTTISH_SLR_Court_of_Session

Page: 398↓

Court of Session Inner House Second Division.

Saturday, March 20. 1875.

12 SLR 398

Rae

v.

Linton & The Bank of Scotland.

(Ante, p. 148.)

Subject_1Jury Trial
Subject_2Issues
Subject_3Malice.
Facts:

A party was imprisoned on a conviction before the Police Court, which was afterwards quashed by the High Court of Justiciary on the ground that no crime had been libelled. In an action of damages at his instance against the Procurator-Fiscal and the party on whose information he was apprehended,— held that he must take an issue of malice and want of probable cause.

Headnote:

This case came up on a notice of motion by the pursuer to vary issues, in an action at his instance against Thomas Linton, Procurator-Fiscal of the Police-court of Edinburgh, and also against the Bank of Scotland. The pursuer was convicted in the Police-court in August last of having wickedly and feloniously obtained money under false pretences, and sentenced to 20 days' imprisonment. This conviction was subsequently quashed by the High Court of Justiciary, on the ground that no crime had been libelled. (See Rae v. Linton, ante, p. 148.) Rae now claimed damages in respect of his illegal apprehension and imprisonment. The following were the issues as adjusted by the Lord Ordinary ( Craighill):—(1) Whether the defenders, the said Governor and Company of the Bank of Scotland, on or about the 7th day of August 1874, maliciously, and without probable cause, caused the pursuer to be apprehended, and thereafter to be tried in the Police-court of the city of Edinburgh, and convicted of the crime of falsehood, fraud, and wilful imposition, and subsequently to be imprisoned in the prison of Edinburgh for twenty days, to the loss, injury, and damage of the pursuer. Damages laid at £2000. (2) Whether on or about the 7th day of August 1874, the defender, the said Thomas Linton, maliciously, and without probable cause, caused the pursuer to be apprehended, and thereafter to be tried and convicted in the Police-court of the city of Edinburgh for the crime of falsehood, fraud, and wilful imposition, and subsequently to be imprisoned in the prison of Edinburgh for twenty days, to the loss, injury, and damage of the pursuer? Damages laid at £2000.” The pursuer now moved the Second Division to vary the issues
Page: 399↓
so adjusted by deleting the words “maliciously and without probable cause” from each issue, and inserting in their stead the word “wrongously.”

The defender Linton pleaded 27 and 28 Vict. c. 53, sec. 30. which provides that no Procurator-Fiscal, or other party prosecuting for the public interest, by complaint under that or any other Act, shall be liable to pay a greater sum than £5 as damages for any proceedings taken or anything done on such complaint, or on any judgment following on such complaint, “unless the person prosecuting for damages shall aver and prove that such proceedings were taken or done maliciously and without probable cause.”

Authorities cited:— Arbuckle, 3 Dow, 160; Hollands, 5 D., 1352; Strachan, 7 D., 399; Barclay, 16 D. 714; Mains, 23 D., 1258; Bell, 3 Macph., 1026.

At advising—

Judgment:

Lord Justice-Clerk—I have no doubt in this case. We have here in the first place a private party informing the competent officer of his complaint, and then we have that officer taking the proper steps to have the complaint investigated and tried. It is ultimately found that the complaint is not relevant—not that it did not set forth what might be a crime, but that the acts averred did not amount to the crime libelled. The question now is whether the defenders are liable without an averment of malice. In my opinion this is just such a case as requires proof of malice, even independently of the Police Act. This has been found over and over again. The case of Bell was very different. The ratio of that judgment was that the Fiscal acted without even the slightest colour of law: It may indeed in this case turn out that the defenders knew things which we have as yet no proof they did know, but in that case it will be easy to infer malice.

The other Judges concurred.

The Court refused the motion.

Counsel:

Counsel for the Pursuer— Dean of Faculty (Clark) and M'Kechnie. Agent— W. S. Stuart, S.S.C.

Counsel for Thomas Linton— M'Laren. Agents— Richardson & Johnston, W.S.

Counsel for the Bank of Scotland— Macdonald. Agents— Tods, Murray, & Jamieson, W.S.
1875