Scottish Court of Session Decisions

In January 1894 John Lundie, shoemaker and hawker, Maybole, formerly resident at Fort-William, brought an action of damages for £250 on account of wrongous apprehension, imprisonment, and prosecution, against David Macbrayne, shipowner, Glasgow.

He averred that “(Cond. 2) on 10th August 1893 the pursuer, who was taking a pony belonging to him from Oban to Fort-William, contracted with the defender's agent at Oban for the carriage of said pony and for a steerage passage for himself per the said steamer ‘Chevalier.’ The freight charge was fixed at 5s., which pursuer paid, and received a receipt therefor. By said contract, according to custom by which a person travelling in charge of a horse or pony or cattle received a steerage passage without payment of any sum beyond the freight, and according to specific agreement on this occasion with the defender's said agent, the pursuer was entitled to travel in charge of said pony without paying an additional fare, and he did so travel. He was not challenged by any of the defender's servants for a pass when going aboard said steamer as aforesaid, nor was any demand made upon him until the steamer was within twelve miles of Fort-William, when John James Lawson, the defender's purser, demanded his fare or a ticket. The pursuer in reply produced said receipt, explaining that that included his own fare. Lawson refused to accept this explanation, and without calling the captain or master, and making a demand for the fare through him on the arrival of the steamer at Fort—William, illegally, maliciously, and without probable cause, gave the pursuer in charge of a constable, and also forcibly and illegally took possession of the said pony. The above proceedings took place upon the open pier, and in presence of a large number of spectators. The pursuer was then publicly taken in custody to the police office at Fort-William, where he was detained for over half-an-hour and then liberated, without any formal charge having been made against him, or record made in the police books of the arrest or liberation. The defender's explanation in answer is denied. The pursuer had no choice but to go with the constable, as he was given in charge by Lawson. He was both arrested and detained.” He also averred that he had been subjected on 24th August to a summary prosecution under the 35th section of the Merchant Shipping Amendment Act 1862 at the instance of the defender, that he had been convicted and fined 5s., and that his pony had been sold under the Sheriff's warrant to pay said fine, although the conviction had since been quashed by the High Court of Justiciary.

The defender in answer 2 “Admitted that the pursuer contracted with the defender's agent at Oban for the carriage of a small Highland pony from Oban to Fort-William by the steamer ‘Chevalier. The usual freight charge of 7s. 6d. for a horse or pony was restricted to 5s., in respect of the pursuer's pony being a very small animal. The pursuer paid the 5s. and received a receipt. Denied that by said contract or by custom the pursuer was entitled to travel free. He was a passenger by the steamer in charge of the pony, and as such was liable for his fare in addition to the freight charge for the pony. He was asked for his fare by the purser, but he refused, and had no money to pay it. His name and address were unknown to the pursuer, and also to the constable on the pier at Fort-William, but he said he was known to the inspector of police, and he offered to go to the inspector to be identified. He was accompanied there. He was not arrested nor detained. In the circumstances he might have been lawfully detained till tried, in terms of section 37 of the Act 25 and 26 Vict. cap. 63. The pony was left by the pursuer on the pier, and the clerk to the steamboat agent put it in a stable, where it remained all night. It was offered to the pursuer in the morning, but he declined to take it, and it was thereafter placed at livery. Quoad ultra denied.” With regard to the prosecution he explained that the conviction had only been quashed on the technical ground that the complaint had been presented without the concurrence of the procurator-fiscal, and that although that concurrence had been added with leave of the Court at the trial, that did not validate the proceedings.

He pleaded—“(1) The pursuer's statements are irrelevant and insufficient to support the conclusions of the action. (2) The pursuer's material averments being unfounded in fact, the defender is entitled to absolvitor, with expenses. (4) The proceedings referred to having been instituted under the Summary Procedure (Scotland) Act 1864, and the present action not having been brought within two months after the cause of action arose, it is excluded by section 35 of the said Act, in so far as based on anything done in the said proceedings.”

The Merchant Shipping Act Amendment Act 1862 (25 and 26 Vict. cap. 63), sec. 35, provides that “The following offenders, that is to say … (9) Any person on board any such steamer who does not, when required by the master or other officer of such steamer, either pay his fare or exhibit such ticket or receipt (if any) showing the payment of his fare as is usually given to persons travelling by and paying their fare for such steamer, shall for every such

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offence be liable to a penalty not exceeding 40s.” … And section 37 provides that “It shall be lawful for the master or other officer of any duly surveyed passenger steamer, and for all persons called by him to his assistance, to detain any person who has committed any offence against any of the provisions of the two last preceding sections of this Act, and whose name and address are unknown to such officer, and to convey such offender with all convenient despatch before some justice without any warrant or other authority than this Act, and such justice shall have jurisdiction to try the case and shall proceed with all convenient despatch to the hearing and determining of the complaint against such offender.”

The Summary Procedure Act 1864 (27 and 28 Vict. cap. 53) by sec. 35 provides that “Every action or prosecution against any sheriff, judge, or magistrate, or against any clerk of court, procurator-fiscal, or other person, on account of anything done in any case instituted under this Act, shall be commenced within two months after the cause of action shall have arisen.” …

The following amended issues were proposed by the pursuer—“(1) Whether, on or about 10th August 1893, on board defender's steamer ‘Chevalier,’ at Fort-William, John James Lawson, an officer in the service of the defender, acting within the scope of his authority, wrongfully and oppressively caused the pursuer to be apprehended and taken in custody to the police office at Fort-William, to the loss, injury, and damage of the pursuer? (2) Whether, on or about 19th August 1893, the defender or some one in his employment, and for whom he is responsible, by presenting a complaint to the Sheriff-Substitute at Fort-William, wrongfully and illegally caused the pursuer to be brought before the Sheriff-Substitute at Fort-William on 24th August 1893, and tried on a charge at defender's instance of having refused to pay his fare from Oban to Fort-William, and convicted and fined five shillings, with instant execution by arrestment and poinding, to the loss, injury, and damage of the pursuer? (3) Whether, on or about 30th August 1893, the defender wrongfully and illegally caused the pursuer's pony to be poinded and sold by a sheriff-officer, to the loss, injury, and damage of the pursuer? Damages laid at £250.”

Upon 5th June 1894 the Lord Ordinary ( Stormonth Darling) allowed the first issue, but disallowed the second and third.

“ Opinion.—With regard to the second and third issues proposed for the pursuer, the defender's plea, founded on the 35th section of the Summary Procedure Act, seems to me conclusive. Both issues relate to something done in a case instituted under that Act. No doubt it turned out that the case had been badly instituted for want of the concurrence of the procurator-fiscal. But it was a proceeding under the Act all the same, and therefore this action, so far as these issues are concerned, comes too late.

If the wrong complained of in the first issue had been that the defender's officer gave the pursuer into custody for committing an ordinary crime, it is clear that the defender would not have been responsible, and the officer himself could only have been made liable by its being shown that he acted maliciously and without probable cause. But the apprehension of the pursuer took place in respect of an alleged offence against the 35th section of the Merchant Shipping Act of 1862, and by virtue of the powers conferred on the master and officers of a passenger steamer by section 37. Now, I cannot distinguish between an act of that kind done under statutory powers by the owner's representatives, and for his behoof, and the detention of a passenger by the servants of a railway company for an alleged contravention of the company's bye-laws. In the latter class of cases the company has been held responsible on the principle of implied authority, because the servant is appointed to do that among other things, and if he makes a mistake the company must answer. The officer's authority is not very distinctly averred on record, but I think any omission on that score is supplied by the defender's admitted adoption of his act. It seems to me therefore that the first issue must be allowed.”

The defender reclaimed, and argued—(1) The Lord Ordinary should have disallowed the first issue on the same grounds as he had disallowed the other two. The whole proceedings complained of were taken under or in view of the Summary Procedure Act. (2) Even if the first issue were approved, the words “maliciously and without probable cause” should be inserted— Rae v. Linton, March 20, 1875, 2 R. 669; Wilson v. Mackie, October 22, 1875, 3 R. 18; Craig v. Peebles, February 16, 1876, 3 R. 441; Wardrope v. Duke of Hamilton, June 24, 1876, 3 R. 876; J. & W. Kinnes v. Adam & Sons, March 8, 1882, 9 R. 698. But if they were inserted the case fell, because there could be no malice on the part of the defender, who had nothing to do with the proceedings, and there could be no suggestion of want of probable cause looking to the pursuer's own statements and to the conviction by the Sheriff. That conviction had been quashed on a purely techical ground, supra, January 23, 1894, p. 337.

Argued for the respondent—(1) There was no suggestion that the apprehension complained of was in any way under the Summary Procedure Act, which could therefore have no bearing on the first issue. (2) The whole proceedings complained of had been under the Merchant Shipping Act. It contained no limitation of time; therefore the Lord Ordinary was wrong in disallowing the second and third issues. (3) It was not necessary to insert “maliciously,” because there was here no case of privilege. The following cases were in point:— Cann v. Clipperton, 1822, 10 Adolph. & Ellis, 582; Strachan v. Monro, 1822, 7 D. 399; Bayley v. Manchester, Sheffield, & Lincolnshire Railway Company, 1873, L.R., 8 C.P. 148;

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Althorpe v. Edinburgh Street Tramways Company, December 13, 1882, 10 R. 344; Lowe v. Great Northern Railway Company, 62 L. J. (Common Law, 1893) 524.

At advising—