Scottish Court of Session Decisions

George Albert Wilson, engineer, Glasgow, raised an action in the Sheriff Court at Glasgow against Alexander Bennett, constable in the Eastern Divison of the Glasgow Police Force, for £100 in name of damages for assault.

Page: 217↓

The pursuer averred that about 12·30 p.m. on 9th December 1902 he left his employment at Messrs J. & F. Bell, tobacco manufacturers, Glasgow, and was proceeding towards his home in Gallowgate; that at Claythorn Street he called the attention of the defender, who was on duty there, to a vent which was on fire, that the defender swore at the pursuer and the pursuer threatened to report him; that the defender kicked the pursuer, struck him on the head with his baton, and seized him by the throat; that the pursuer in his endeavours to protect himself caught the defender's helmet by the strap and the helmet fell off; that the pursuer was then arrested by the defender and two other constables and taken to the Eastern Police Office, where he was charged by the defender with having assaulted him; that on the following morning the pursuer was brought before the magistrate officiating in the Eastern Police Court, and after evidence was led by defender and his associates was convicted and sentenced to imprisonment for fourteen days failing payment of a fine of £ 1, 1s.; and that since the date when the assault was committed on him the pursuer had had medical attention, and that he would permanently suffer in consequence of the defender's brutality.

No action had ever been taken by the pursuer to get his conviction suspended.

The defender pleaded, inter alia—“(2) The pursuer having been convicted in a competent Court is until that conviction has been set aside barred from suing this action.”

On 27th May 1903 the Sheriff ( Boyd) allowed a proof.

The pursuer appealed for jury trial, and submitted the following issue for the trial of the cause—“Whether on or about the 9th day of December 1902, at or near Claythorn Street, Glasgow, the defender assaulted the pursuer, to the loss, injury, and damage of the pursuer? Damages laid at £100 sterling.”

The respondent in support of his second plea-in-law argued—This action was barred by reason of the fact that the pursuer had been convicted, and that the conviction had not been set aside. The Court should refuse to allow him to proceed if they were satisfied that the evidence which was proposed to be tendered might have been tendered in the Police Court. If he had proved his present statements he would never have been convicted. He might have sought a remedy by suspension if he thought that his conviction was unjust. Not having sought that remedy the conviction was res judicata, and the present action was incompetent— Gilchrist v. Anderson, November 17, 1838, 1 D. 37. The case of Wood v. North British Railway Company, February 14, 1899, 1 F. 562, 36 S.L.R. 407, was distinguishable from the present, as in that case there had not been any conviction for assault on the police.

Counsel for the appellant was not called upon.