Scottish Court of Session Decisions

James Brown, plasterer, Edinburgh, brought an action against James Smith Fraser, builder, in which he sought to recover damages suffered by him owing to the defender having given false information to the police leading to his having been arrested and tried for theft.

The nature and substance of the pursuer's averments sufficiently appear from the opinion of the Lord Ordinary ( Salvesen), who on 22nd May 1900 approved of an issue as amended, which included malice and want of probable cause.

Opinion.—“The pursuer in this case was apprehended and subsequently tried on a charge of theft, alleged to have been made against him by the defender. He was acquitted; and he now brings this action to recover damages against the defender in respect of the false information which led to the public exposure necessarily incident to such a trial. As the action is not one of slander but is laid entirely on the information given to the authorities, it is plain that malice and want of probable cause must go into the issue, and the contrary was not seriously contended by the pursuer's counsel.

“The defender argued that the action should be dismissed on the grounds (1) that there was no relevant averment of facts from which malice could be inferred; and (2) that the pursuer's own averments disclosed that the defender did not act without probable cause. If the defender is right in either of these propositions it follows that the action must be thrown out.

“The articles said to have been stolen consisted of five cornice moulds and a plan. These moulds had been made by the pursuer in order to enable him to do certain plaster work on the defender's employment, and the plan had been handed to him in order that he might make the moulds in accordance therewith. The pursuer says, however, that the plan was departed from and was treated as valueless. As regards the cornice moulds the pursuer avers that they were made by him at his own expense, of materials purchased by him out of his own funds. This statement is plainly inaccurate, because the account No. 7 of process (the genuineness of which was admitted) shows that the pursuer charged and was paid for the cost of making the zinc moulds. The ‘horsing’ or wooden backing of the zinc moulds seems also to have been made from materials belonging to the defender; but there remains the substantial averment—which is said to have been ad mitted by the defender in the evidence which he gave at the trial in the police court—that the zinc, which formed the most valuable part of the moulds so far as the materials were concerned, was purchased by the pursuer out of his own funds. It is rather a nice question, in these circumstances, in whom was the property of the moulds, but I have little doubt that the defender on paying for the price of the zinc would in a civil action have been found entitled to them.

“While the pursuer was still using these moulds his employment was suddenly terminated by the defender. The pursuer resented his dismissal, and, as his own post-card shows, determined to put the defender to as much inconvenience as possible by removing the moulds. When he was written to by the defender to return them he admitted having removed them with that object, and falsely added, ‘I cannot now return them, for I made firewood of them on Tuesday morning. You are at liberty to give me in charge for theft if you fancy you have a case. This I question.” The defender thereupon gave information to the police, which resulted in the pursuer's apprehension and trial on a charge of theft of the cornice moulds.

“I cannot but think that the pursuer's conduct was highly improper, and that the post-card which he wrote to his former employer was just the kind of communication which was likely to lead the latter to take extreme measures. But the question here is not with regard to the pursuer's conduct, but with regard to the defender's; and if the pursuer's version of the facts be accurate—as I must assume at this stage—I think the defender acted both maliciously and without probable cause. According to this version the defender knew that part of the materials of the cornice moulds had been paid for by the pursuer. He knew further that however unwarranted the removal of the moulds might be from a civil point of view, there was no question of theft in the ordinary sense; and the pursuer alleges that the information which he gave to the police was by way of retaliation to the small-debt summons with which he was served on the 6th of November at the pursuer's instance; or (what seems more likely on the defender's averment) in answer to the challenge contained in the pursuer's post-card. At all events there is, think, room for the view that the information was given not in the bona fide belief that a crime had been committed against the defender, but for the double purpose of punishing the pursuer and of recovering through the action of the police authorities the possession of property the right to which would have been properly dealt with in a civil proceeding. The pursuer says further that the defender maliciously withheld from the police the fact that portions of the moulds were the pursuer's property; and that after he had given his explanation of the matter it was disregarded by the authorities because of the insistence by the defender in the charge of theft. On these averments I think there is at least room for the view that the defender acted maliciously

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and without probable cause; and I am unable to support the contention of the defender's counsel that the mere fact that the prosecution was proceeded with by the authorities, after the pursuer's explanation had been obtained, is sufficient proof that the defender acted with probable cause. The case appears to me closely to resemble that of Denholm, v. Thomson, October 22, 1880, 8 R. 31, 18 S.L.R. 11, in which the Second Division, after a proof, held that sufficient had been established to entitle the pursuer to damages.

“I have not overlooked the fact—which was much pressed in argument—that there was no dispute as to the property of the lan being in the defender, and that it had been improperly removed by the pursuer. There is nothing, however, in the pursuer's averments to suggest that it was feloniously removed—which indeed would be out of the question if it were (as he says) valueless, and had been so treated by both parties. It was not included in the requests which the defender made for the return of the articles removed, and I cannot but think that it plays a very subordinate part in the story. I have therefore come to the conclusion that I cannot refuse the pursuer an issue; and I shall approve of the issue lodged, with the insertion at the proper place of the words ‘ maliciously and without probable cause.”

The defender reclaimed, and argued—(1) There was no averment of facts and circumstances from which malice could be inferred. In order to show malice, facts and circumstances extrinsic from and antecedent to the matter in question must be averred and proved— Campbell v. Cochrane, December 7, 1905, 8 F 205, 43 S.L.R. 221. (2) The pursuer's own averments showed that the defender in giving information to the police did not act without probable cause.

Counsel for the respondent were not called upon.