Scottish Court of Session Decisions

This was an action at the instance of John Beaton, cowherd, residing at Herbista, Kilmuir, in the Island of Skye and county of Inverness, against William Ivory, advocate, Sheriff of Inverness, Elgin, and Nairn, concluding for £500 damages in respect of wrongful arrestment and imprisonment.

The pursuer's averments were as follows:—“(Cond. 2) On 27th October 1886 the pursuer was engaged in his ordinary occupation of herding cattle on the pasture ground of Peingown, the neighbouring township to Herbista, when he was accosted by two police-constables, one of whom was Constable Grant of Edinbane, near Portree, who demanded his name, which the pursuer gave. Grant then apprehended the pursuer, and marched him down to the township of Herbista, where he gave the pursuer in charge of a body of marines. The pursuer asked Grant the reason of his arrest, but got no reply. The pursuer was then marched (in custody of the marines) three miles to Duntulin Bay, put on board the gunboat “Seahorse,” and conveyed as a prisoner to Portree, where he arrived about 11 p.m., and was taken to the prison and confined in a cell. Next day he was brought before Sheriff-Substitute Hamilton, and questioned by the Procurator-Fiscal for more than an hour. He was not again taken before the Sheriff, bat was detained in prison until the following Saturday, October 30th, when he was liberated without any explanation for his arrest. No document was served upon the pursuer showing why he was arrested and detained in custody, nor have any further proceedings been taken against him.”

“(Cond. 3) Grant possessed no warrant for arresting the pursuer, nor had any information been received either by him or by the defender, or by any of the authorities, charging the pursuer with the commission of a crime. Grant arrested the pursuer in obedience to general instructions given to the police by the defender, who was personally present at the township of Herbista, where he had come with a large body of police and marines for the purpose of apprehending the parties who had (as was alleged) deforced a sheriff-officer near Herbista two days before. The instructions referred to were that the police should search for, apprehend, and convey to prison every person whom they could find in the locality where the alleged deforcement took place. In order to incite the police to make arrests the defender promised a medal to every constable who should effect an apprehension. The said instructions were illegal and oppressive, and the apprehension of the pursuer in pursuance thereof was wrongful, and was moreover malicious and without probable cause on the part of the defender. The defender had no probable cause for believing that the pursuer had been concerned in the alleged deforcement. In point of fact the pursuer was not present at the deforcement, but was more than a mile away at the time repairing the roof of his house. Both the pursuer and his wife and others informed the defender of these facts shortly after the pursuer's apprehension, but the defender nevertheless persisted in detaining him in custody.”

He pleaded—“The pursuer having been wrongfully arrested, and detained in prison by the instructions of the defender, and, separatim, the defender having acted maliciously and without probable cause, the pursuer is entitled to decree as concluded for.”

The defender pleaded—“(1) The averments of the pursuer are not relevant or sufficient to support the conclusions of the summons.”

On 28th May 1887 the Lord Ordinary ( Fraser) found that the averments of the pursuer were not relevant, and dismissed the action.

“ Opinion.—The claim in this case is for damages against the Sheriff of the county of Inverness, because it is alleged that he wrongfully arrested and detained in prison, maliciously and without probable cause, the pursuer of this action.

“The circumstances, as appearing from the record, are these. The pursuer, who is a herd, was apprehended on the 27th of October 1886, taken to Portree and detained there for three days, when he was liberated. The person by whose orders the pursuer was apprehended and detained was the defender, the Sheriff of the county of Inverness. In this county, and especially in the island of Skye, there had occurred tumultuary proceedings; meetings were held at which resolutions were passed of a very illegal character—pointing to the resistance of payment to the landlords of their rents. The law had been set at defiance by the deforcement of an officer of the law, and it was found necessary to

Page: 745↓

supplement the ordinary executive officers of the law by additional police force and Royal Marines in order that judgments of courts of law should be carried out. At the head of this force of police and marines was the Sheriff of the county, and along with him there came the officer of the law (Alexander Macdonald, a messenger-at-arms) who had been deforced. The Sheriff gave verbal instructions to the police to apprehend all those who could be identified as persons who had been guilty of this deforcement; and Macdonald identified the pursuer as one of these persons, and he was immediately taken into custody and carried to Portree.

“At Portree the pursuer was brought before the Sheriff-Substitute upon the charge of mobbing and rioting, and of obstructing and deforcing the messenger-at-arms in the execution of his duty; but after consideration of the matters laid before him the Sheriff-Substitute found that there was not sufficient evidence to justify a committal for trial, and the pursuer was liberated.

“Everything here was regularly gone about in usual course with one exception. There was no written warrant for the apprehension of the pursuer, and consequently the apprehension, it is said, was illegal.

“Now, this proposition is untenable. A magistrate, according to the law of Scotland, is entitled, if he sees a crime committed, at once himself to apprehend the delinquent, or to give a verbal order to any policeman or citizen to do so. Nay, although he does not himself see the crime committed, but is informed upon credible authority that it has been committed, he may give a verbal order to pursue and apprehend the suspected person. Baron Hume states that in such a case it ‘is a sufficient justification of a verbal order to the informer and others, to pursue and take the individual, thus positively charged, who might escape through the delay of waiting for a written warrant’ (2 Hume 75). The messenger in the present case was deforced by a mob of people, the names of whom he did know, but the faces of whom he remembered. The deforcement took place on the 25th of October 1886. The Sheriff with the police and marines came to the ground on the 27th of October, and the police received orders from the Sheriff to apprehend any person identified by the deforced messenger, and upon these general instructions the pursuer was apprehended. What the Sheriff here did was entirely within his power. He met an assemblage of people, but had then no means of ascertaining the names of the persons who were the wrongdoers except by getting them pointed out on the spot by the deforced messenger. Written warrants were out of the question in such circumstances. Before a formal complaint and warrant could be written out the wrongdoer would have been away over the hills.

“It would be idle to send this case for trial in any view, seeing that malice must be proved. Now, to say that the action of the Sheriff was malicious is to contradict the statement upon the record to the effect that the pursuer was apprehended under ‘general instructions’—unless, indeed, it be meant to be averred that the Sheriff had malice against the whole population of crofters. In what he did the Sheriff in this case evinced firmness and resolution, and if he had not done so he would not have done his duty. If the chief magistrate of a county, responsible for its peace, were to lie under the threat of actions of damages for what he did in the bona fide execution of his duty, the result would be that his powers to quash tumult and insurrection would be altogether paralysed. It seems to be forgotten that the freedom from responsibility for damages—the absolute privilege that is given to the chief magistrate endeavouring to do his duty—is given to him not for his own sake, but for the sake of the public, whose servant he is, and for the advancement of justice. Upon this ground the Lord Ordinary is of opinion that no relevant case has been stated for the pursuer, and that the action must be dismissed.”

The pursuer reclaimed, and argued—(1) That the general order of the Sheriff was illegal, and that consequently the pursuer was entitled to an issue without averring malice. (2) Even if he was within the law in making the general order, the Sheriff carried it out so recklessly as to justify the inference that he acted maliciously— Cameron v. Hamilton, February 1, 1856, 18 D. 423; Bayne v. Macgregor, March 14, 1863, 1 Macph. 615, 627; Urquhart v. Dick, June 10, 1865, 3 Macph. 932; Denholm v. Thomson, October 22, 1880, 8 R. 31. Further, the Lord Ordinary had no right to consider the official documents produced by the defender in judging of the relevancy, which contained allegations which the pursuer had no opportunity of answering. He should have looked at nothing but the pursuer's averments.

It was argued for the defender—(1) That there was no case where the pursuer in an action of damages for wrongous apprehension was held entitled to an issue without an averment of malice— Arbuckle v. Taylor, May 1, 1815, 3 Dow 160; Urquhart v. Grigor, December 21, 1864, 3 Macph. 283; Rae v. Linton, March 20, 1875, 2 R. 669; Craig v. Peebles, February 16, 1876, 3 R. 441; Hassan v. Paterson, June 26, 1885, 12 R. 1164. A general allegation of malice would not do with a specific allegation of facts and circumstances— Urquhart v. Grigor, supra; Scott v. Turnbull, July 18, 1884, 11 R. 1131; M'Murchy v. Campbell and Maclullich, May 21, 1887, 24 S.L.R. 514. In order to prove malice it was not necessary to show personal malice, but at the same time it was not sufficient to prove want of probable cause. (2) The Lord Ordinary was quite entitled to look at the documents. They were official documents—a signed information and a warrant of commitment—and were really part of the res gestœ.

At advising—