Scottish Court of Session Decisions

The Summary Jurisdiction (scotland) Act 1908, sec. 59, enacts—“No judge, clerk of court, or prosecutor in the public interest shall be liable to pay, or be found liable by any court in damages for or in respect of any proceeding taken, act done, or judgment, decree, or sentence pronounced under this Act, unless the person suing has suffered imprisonment in consequence thereof, and such proceeding, act, judgment, decree, or sentence has been quashed, and unless the person suing shall specifically aver and prove that such proceeding, act, judgment, decree, or sentence was taken, done, or pronounced maliciously and without probable cause.…

On 29th June 1923 Andrew Walter Burton Graham, 263 Kilmarnock Road, Shawlands, Glasgow, bank teller of the British Linen Bank at their Hutchesontown branch, pursuer, brought an action against John Drummond Strathern, Procurator-Fiscal for the Lower Ward of the County of Lanark, defender, in which he concluded for £1000 damages in respect of illegal apprehension.

The following narrative is taken from the opinion ( infra) of the Lord Justice-Clerk:—“The action—an action of damages—is brought by a bank teller in the employment of the British Linen Bank in Glasgow against the Procurator-Fiscal for the Lower Ward of the County of Lanark in that city. The basis of the pursuer's claim is the issue of a warrant for his arrest on a charge of reset, the warrant having been issued at the instance of the defender. The circumstances leading up to the issue of the warrant are as follows; and here, as I am concerned only with the relevancy of the pursuer's averments, I confine my attention to them;—It appears that about the end of April 1923 a man came into the branch of the bank in Glasgow at which the pursuer was employed as teller, viz., the Hutchesontown branch, tendered six five-shilling pieces, and asked for notes in exchange. The pursuer, acting in accordance with the custom which regulates such matters, handed the man Treasury notes in exchange for the coins and placed the latter in the till. At the end of the day these coins along with other coins were assembled for transmission to the head office of the bank, and the pursuer's relationship to them terminated. On 2nd May 1923 two detectives visited the bank accompanied by a man in their custody, who, they said, had stolen certain silver coins. They questioned the pursuer regarding the transaction to which I have alluded. The pursuer identified the man in question as the man to whom he had given notes in exchange for six coins. The detectives demanded these coins from the pursuer. The pursuer declined to give them up and explained that they had been immixed with the bank's money. He further informed the detectives of the circumstances in which he had obtained the coins, and added that he could not part with them without the bank's instructions. The detectives then interviewed the bank agent, Mr Russell, who confirmed the pursuer's view of the matter. Mr Russell further stated that he must await instructions from the head office of the bank in Edinburgh, and that he hoped to receive these next day. The detectives thereupon withdrew, stating that they would return on the following day. Mr Russell reported the matter to the head office in Edinburgh, and on 3rd May received instructions from them to retain the coins pending consideration of the situation, and at the same time to forward fuller particulars of the transaction. The instructions so received by Mr Russell were duly communicated to the pursuer. On the same date, 3rd May, a detective officer called at the bank and demanded the coins from the pursuer. The latter informed the detective, Mr Russell being at the time out upon bank business, that he had been instructed to retain the coins pending further inquiry.

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The detective officer intimated to the pursuer that he would apply for a warrant, took the pursuer's name and address, and declining to await the return of the bank agent departed. The same afternoon at 3 p.m. two detectives called at the bank, presented a Sheriff's warrant of that date, and read it over to the pursuer. It charged him with resetting the coins referred to, and with failing to hand them over when asked to do so. The bank agent at this point intervened, and persuaded one of the officers to accompany him to see the defender on the subject. The other officer remained at the bank in charge of the pursuer. Mr Russell obtained an interview with the defender and explained the whole circumstances to him. In particular, he told the defender that the pursuer had not possession of the coins, that he had acted throughout on the instructions of the bank, that there was no ground for his arrest, and that he should forthwith be liberated. Mr Russell also undertook that the coins would be handed over to the police. The pursuer was thereupon freed from the surveillance of the detective officer who had remained at the bank, and no further steps were taken against him under the warrant.”

The pursuer pleaded, inter alia—“1. The defender having wrongfully, illegally, and maliciously and without probable cause procured and put in operation against the pursuer a warrant for pursuer's apprehension and imprisonment, and thereby caused his apprehension and deprivation of personal liberty, et separatim having by his actings defamed the pursuer, is liable to the pursuer in damages, 4. The proceedings complained of having been taken by the defender without warrant in law or statute, the fifth plea-in-law for the defender should be repelled.”

The defender pleaded, inter alia—“1. The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons the action should be dismissed. 2. The defender in the matter complained of having acted throughout in the bona fide execution of his duty as procurator-fiscal without malice and with probable cause should be assoilzied. 3. The defender being privileged in the actings complained of, he is entitled to absolvitor. 4. The warrant complained of having been formally and regularly applied for and competently granted the defender is entitled to absolvitor. 5. The action being excluded by section 59 of the Summary Jurisdiction (Scotland) Act 1908, in respect (a) that pursuer has not suffered imprisonment in consequence of the proceedings complained of, (b) that the said proceedings have not been quashed, and (c) that the said proceedings were not taken maliciously and without probable cause, the defender should be assoilzied.”

The pursuer proposed the following issues:—“1. Whether on or about 3rd May 1923 the defender wrongfully, illegally, and without probable cause, and without warrant in law or statute, did procure a Sheriff's warrant, and did thereunder in the branch bank of the British Linen Bank at Hutchesontown, Glasgow, cause the pursuer to be charged with the reset of coins of the realm, to the loss, injury, and damage of the pursuer? 2. Whether on or about the said date the defender did wrongfully, and without warrant in law or statute, cause to be preferred against the pursuer a charge of reset of theft, and did thereby falsely and calumniously represent that the pursuer had been guilty of a crime inferring dishonesty, to the loss, injury, and damage of the pursuer?”

On 7th December 1923 the Lord Ordinary ( Blackburn) disallowed the issues proposed for the pursuer and dismissed the action.

Opinion—[ After narrating the facts]—“The first references on record by the pursuer to the part played by the defender in the proceedings complained of are contained in condescendences 8 and 9, and refer to the visit paid to him by Mr Russell. These are followed by a series of general averments in condescendence 10, that the proceedings taken by the defender were illegal and without the authority of any law or statute, and that he had acted maliciously and without probable cause in preferring against the pursuer a charge of reset upon which the warrant for his arrest had proceeded. One has to turn to answer 8 for the defender to find that the charge had been made under the Summary Jurisdiction Act of 1908, and in his fifth plea-inlaw the defender founds upon section 59 of that Act as excluding the present action. That section provides that no prosecutor in the public interest shall be found liable by any Court in damages for any proceedings taken under the Act unless the person suing has suffered imprisonment in consequence thereof and the proceeding has been quashed, and unless the person suing shall specifically aver and prove that the proceeding was taken maliciously and without probable cause. It was not maintained for the pursuer that if the defender was justified in taking proceedings under this statute he is not entitled to rely on the immunity provided by the above section. I do not think the construction of the section presents any serious difficulty. It requires, as a preliminary to any action of damages against a public prosecutor, that any proceedings initiated by him under the Act should have been carried to trial, should have resulted in imprisonment, and should thereafter have been quashed. These preliminary conditions being satisfied, the person suing must in order to succeed in his action aver and prove malice and want of probable cause on the part of the prosecutor in initiating the proceedings. It is quite certain that in the present case one of these preliminary conditions has not been satisfied, as the proceedings have not been quashed. Abandonment of the proceedings is quite a different matter to what I understand to be desiderated by the section, namely, that the proceedings have been brought before the High Court and set aside. Further, I entertain no doubt that the pursuer has not suffered imprisonment within the meaning of the section. His

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only averments on this point are that after being arrested he was ‘imprisoned in the bank's premises and not allowed to depart therefrom’(cond. 8), which he thereafter refers to as his ‘detention or imprisonment in the bank's premises.’ In my opinion imprisonment, to come within the meaning of the section, must be suffered in a prison, and I entertain little doubt—although it is unnecessary to decide the point in this action—that the section refers to imprisonment following upon a sentence for which the quashing of the proceedings would provide no such recompense to the person suing as would have been provided had the sentence been only the imposition of a fine. Accordingly, it is quite clear that if the defender was justified in proceeding under the statute this action fails without any necessity of considering the relevancy of the pursuer's averments of malice and want of probable cause.

But although the pursuer's record has no reference to the Summary Jurisdiction Act, he has a plea (No. 4) that the proceedings complained of having been taken without warrant in law or statute the defender's fifth plea-in-law should be repelled. There is no averment on record that in electing to proceed by a complaint under the Summary Jurisdiction Act the defender had made an incompetent or unauthorised use of the provisions of the Act. But it was argued that to charge a person with so serious a crime as reset was to make an unwarranted and unjustified use of a Summary Act, and accordingly that the defender was not entitled to shelter himself under its protective clauses. That a complaint might be made under a Summary Procedure Act of such a character as to deprive the complainer of the right to appeal to its protective clauses was stated by Lord President Inglis in Ferguson v. M'Nab (12 R. 1089), where the Act in question was the Summary Procedure Act of 1864, but the learned Judge goes on to describe the sort of charge he had in mind as being one which did not set forth ‘any known offence, either statutory or at common law, but some indifferent or ludicrous act inferring no legal consequences of any kind.’ The charge in this case being one of reset, the dictum quoted does not go far to assist the pursuer's case. But the argument also proceeded on what is, in my opinion, an erroneous assumption that the proceedings having been initiated by a summary complaint would have to be disposed of summarily. There is no reason whatever, so far as I am aware, why proceedings which have originated in a summary charge should not, if further investigation justify it, be reported to Crown counsel, with the result that a prosecution by way of indictment might be ordered.

It is a little difficult to ascertain from his general averments what the pursuer founds on as his real grounds of action. But the terms of his first plea-in-law suggest that he mixes up indiscriminately two quite distinct grounds on which the actings of a public prosecutor may be attacked. It is there pleaded that the defender acted ‘wrongfully, illegally, and maliciously and without probable cause,’ and these four charges appear to me to confuse two quite separate issues. The position of a public prosecutor is a highly privileged one, and the presumption that he is doing his duty honestly and bona fide is a very strong one—per Lord President Inglis in Beaton v. Ivory, 14 R. 1061. But if a prosecutor acts outwith his duty, or makes a departure from regular procedure which amounts to illegality, his privilege will avail him nothing. Two cases illustrating this ground of action against public prosecutors are M'Crone v. Sawers (14 S. 443), where the prosecutor had attempted to exercise his powers outwith the ambit of his jurisdiction, and Bell v. Black (3 Macph. 1026), where he had obtained an illegal warrant within his jurisdiction and had acted upon it. In both cases it was held that the prosecutor could not plead privilege as a defence. But in the latter case Lord President Inglis expressly points out (p. 1029) that the prosecutor's privilege applies in all cases ‘when he prosecutes an offender ad vindictam publicam for a criminal offence, and where the prosecution fails on the merits and it turns out that the defender is innocent, no action of damages will lie against him unless it be averred that he acted maliciously and without probable cause.’ No distinction can in my opinion be drawn between a charge which has been abandoned and a prosecution which has been conducted to a final conclusion and fails on the merits. The abandonment proceeds upon the footing that the accused's innocence has been established at an earlier stage than if he had been put on trial. To plead as the pursuer does that the defender acted wrongfully and illegally assumes that he acted in a manner which does not entitle him to shelter himself behind his privilege, while to plead that he acted maliciously and without probable cause assumes that the plea of privilege is open to him. At the end of the discussion I was left in doubt as to whether the pursuer's action is presented on the ground that the defender's actings in this case were privileged or not.

As I understood the argument, the averment principally founded on to support the conclusion that the defender had acted illegally is that which sets forth that the essentials necessary to establish the crime of reset were absent from the case. This same averment was, however, also founded on at a later stage as an averment instructing malice. In my opinion it amounts to no more than an averment of want of probable cause in law. ‘Want of probable cause may mean … in fact or … in law’— per Lord Neaves in Craig v. Peebles (3 R. 446)—and want of probable cause is not sufficient to exclude the prosecutor's plea of privilege, although it may be sufficient to assist in rebutting it. The averments contained in condescendence 10 apply to the charge of reset quite independently of the statute under which the charge was made. They set out that in making the charge the defender acted illegally, recklessly, maliciously, and without probable

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cause, and for the sole purpose of bringing wrongful pressure to bear upon the pursuer so as to compel him to comply with the police demands. This means that the defender acted as he did solely for the purpose of recovering possession of the stolen coins in order to bring the thieves to justice. To make a charge of reset for such a purpose against an innocent person may be a rash and unwarrantable proceeding, but if the true purpose was that described in the above averment, it is difficult to justify the averment which follows, that the defender acted corruptly and in malversation of his office and not for the vindication of law and justice. I do not consider that it is necessary for me to deal specifically with this latter averment, which is not supported by any independent facts, and is merely an inference from the fact that the defender had made a charge of reset against the pursuer. In view of the dictum already quoted of Lord Justice-Clerk Inglis in the case of Bell v. Black, I entertain no doubt that the action of defender in making a charge of reset is protected by privilege, and accordingly that this action could in any event only have been allowed to proceed if the pursuer has relevantly averred malice and want of probable cause. I shall deal with the question of whether there was any justification in law for a charge of reset under the head of want of probable cause, and I need only add that in a case of this kind I think a pursuer's averments require to be narrowly scrutinised. The position of a public prosecutor, and particularly the position of a public prosecutor in Glasgow, is such that it would be detrimental to the public service in the highest degree if he were to be subjected to actions of damages, unless they clearly disclosed that he had acted outwith his duties altogether or in a spirit of malice without any probable cause. These two things, malice and want of probable cause, are quite distinct and separate, and the pursuer must prove them both— West v. Mackenzie, 1917 S.C. 513, per Lord Justice-Clerk Scott Dickson. But malice and want of probable cause react on one another to some extent. In the case of Stewart v. Sproat (1858, 1 P.L.M. 82), which was an action of slander against a member of a parochial board for a statement made at a meeting of the board, Lord Justice-Clerk Inglis charged the jury (p. 90) that the want of probable cause may go some way to indicate the existence of a bad motive, and therefore you may take that perhaps as being an element in considering the question of malice also. But don't confound the two things. Want of probable cause and malice are not the same thing, as I have already explained, and the want of probable cause may in many cases not even in the least degree indicate the presence of malice, because it may show mere want of due consideration or mere rashness, or something of that kind.’ On the other hand, in Urquhart v. Dick (3 Macph. 932), an action of damages against a procurator-fiscal for having made an ill-founded charge against a woman of concealment of pregnancy and child murder, Lord Kinloch charged the jury that ‘in order to establish malice it is not necessary to establish personal hostility or ill-will towards a particular individual. If a thing is done against duty, with a reckless disregard of the interests or feelings of the individual, that thing is done maliciously in the eyes of the law.’ I find it a little difficult to reconcile these two directions, as Lord Kinloch goes the length of saying that want of probable cause alone may provide complete evidence of malice, while Lord Justice-Clerk Inglis lays down that there must be some evidence of malice independent of want of probable cause, although want of probable cause may go some way to indicate a malicious motive. It rather appears to me that the illustration Lord Kinloch gives of a public prosecutor having done a thing ‘against duty’ is an illustration of a case where the prosecutor had ipso facto debarred himself from pleading privilege, and accordingly of a case where no question of malice could have arisen. The views expressed by Lord Justice-Clerk Inglis are in accordance with those of the learned Judges of the Court of Appeal in the case of Brown v. Hawkes (1891, 2 Q.B. 718), and the conclusion I come to is that where it is necessary to prove want of probable cause and malice to justify an action against a public prosecutor for proceedings taken by him, evidence of want of probable cause, even if so complete as to make it difficult to understand how the proceedings came to have been taken, is not in itself sufficient to justify the action without some evidence of malice, but if there is evidence that the public prosecutor was actuated by an indirect motive in taking the proceedings, then that might be sufficient in the complete absence of probable cause to justify the conclusion that the true motive was a malicious one.

Turning now to the averments of malice in the present case, there are none that can be described as independent averments of malice. It is true that pursuer's counsel founded on the statement in condescendence 7, where it is said that one of the detectives said to the pursuer in the bank,‘I will make it hot for you, my man,’ as an independent averment of malicious motive on the part of the defender. It was argued that in this matter the Procurator-Fiscal and the police must be treated as one. But even if the Procurator-Fiscal is to be held responsible for the inaccuracy of the reports submitted to him by the police, and it is clear from the defences that the information laid before him differed in many essentials from the version of the facts now presented by the pursuer, I cannot hold that a casual remark made by an individual of the police, which is clearly outwith his duty, can be taken as evidence of a malicious motive on the part of the defender. The other two averments which were founded on as indicating malice are, first, that contained in condescendence 9, where it appears in the pursuer's explanations in reply to the defender's answer. The answer sets out that the defender had agreed not to proceed further with the warrant, and

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this is admitted by the pursuer subject to what is described as an ‘express admission’ of a statement not contained in the answer, ‘that the warrant, which had been issued merely in terrorem and in malversation of the powers vested in the defender was withdrawn as soon as the defender ascertained that its purpose had been served.’ Next, in condescendence 10, it is stated—‘The defender well knew that all the criminal elements which were required to constitute the crime of reset were absent. He, however, preferred a charge of reset against the pursuer in order to bring wrongful pressure to bear upon him, so that he might be induced, without examination, to comply with any demands the police officers might choose to make.’ The first part of this latter averment, I have already said, is no more than an averment of want of probable cause. But the second part, and the averment in condescendence 9, ascribes to the defender a motive for making the charge other than that of convicting the pursuer of the crime charged. The motive ascribed is the recovery of the stolen articles, and I would hesitate to hold that such a motive could be properly described as an ‘ indirect’ motive where the crime charged is reset. I do not think it would be difficult to figure cases where the recovery of the stolen goods might be a much more important result of such a charge than the ultimate conviction of the resetter. This averment appears to me to be more appropriate to want of probable cause than to an indirect motive unconnected with the charge made from which malice may be inferred. It is no more than an inference drawn from the fact that the charge was made. If specific and independent averments of malice are required in such a case as this, and in my opinion they are required, I do not think that the pursuer's averments are sufficient to justify the action.

If I am right in so holding, that is the end of the case, but even if I had been of opinion that an indirect motive had been independently averred, I am further of the opinion that the averments of want of probable cause do not disclose such a complete absence of probable cause as to justify the conclusion that the indirect motive alleged must have been malicious. I deal first with the averment that the essentials necessary to constitute the crime of reset were absent from the case. This proceeds on the assumption that the coins being legal tender, i.e., dated subsequent to 1816, and having been taken by the defender in exchange, the property in the coins immediately passed to the bank. It was argued that no one could be guilty of the crime of reset unless he was feloniously in possession of stolen property with the purpose of detaining it from the true owner, and that as in this case the true owner was the pursuer's employers, and as he took the money in the course of his duty, he could not possibly be guilty of the crime charged. I do not think it is necessary to consider what appears to me to be open to some doubt, whether a bank could successfully maintain in a question with the former owner that the property in coins which, even if current, are plainly identifiable, which have an independent value from a collector's point of view, and which have been admittedly stolen, asses to the bank because they have quite bona fide been exchanged for coinage of equal value. I entertain no doubt, however, that the bank would be entitled to be reimbursed by the former owner in the face value of the coins. It must not be overlooked, too, that in this case one of the coins taken in exchange is of doubtful currency. But for the present I assume that the averment that the property passed to the bank is well founded, and that the pursuer retained possession of them in the interests of his employers. I entertain no doubt that a conviction for reset would not be justified unless it were proved that the person charged was retaining the property against the true owner—Hume, vol. i, pp. 113 and 115. But that learned author goes on to say (p. 115)—‘But ordinarily the vicious purpose is presumable from the same circumstances of evidence which establish the panel's knowledge of the condition of the goods; so that when this has been proved it will be with him to substantiate in the way of exculpation, and as he best may, the alleged innocent or laudable intention with which he wittingly detained the stolen property of another.’ Accordingly it appears to me that in considering whether the defender had or had not any probable cause for charging the pursuer with reset, the true question is whether the pursuer has relevantly averred facts brought to the defender's knowledge which must have necessarily substantiated his innocent or laudable intention in detaining the stolen coins after he became aware that they had been stolen. Now, one of the weaknesses in the pursuer's case is that he nowhere avers that what passed at the bank according to his own account was ever reported to the defender. I do not think it was necessary for him to aver what the police reported to the defender, but it cannot be readily assumed against the defender that the police report was in conformity with the pursuer's own version of all that took place in the bank. Indeed it is clear from the defences lodged that the matter was represented by them in a very different light. But dealing with what passed in the bank as being correctly narrated in the pursuer's own averments the question comes to this, do these averments disclose facts and circumstances sufficient to exclude any suspicion that he might not have been guilty of retaining possession of the coins from personal motives and not with an entirely innocent and laudable intention. No one now suggests that in obstructing the police he acted at the worst otherwise than foolishly. His averments as to the coins being legal tender which he was bound to accept lack point, as he nowhere says that prior to their being handed over to the defender he or the police had any knowledge about them other than that they had formed part of a collection of old British coins which had been stolen, and

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that they had been subsequently exchanged at the bank. Further, on the pursuer's own admission, it is now clear that he would have been entitled to reject one of the coins as not bearing to be of a later date than 1816. Next, he avers that before the first visit of the detectives the coins had been placed with other silver coins in lots of £100, and his books had been balanced, and that he had no further concern in the matter. He states that this was communicated to the detectives on their first visit, and he immediately afterwards states that he told them that he could not part with the coins because they were the property of the bank. I have already said that these two averments appear to me to be quite inconsistent, and the latter one assumes that he still had possession of the coins. On the next day, when the detectives returned, he informed them of the dilatory instructions received from the head office and stated that he had express instructions from the bank agent to retain the coins. I, of course, am bound to accept that the message from the head office as set out in condescendence 4 was received at the branch office, but I have to consider what effect the statement by the pursuer at the time that such a message had been received would have on the minds of those to whom the statement was made. Now, considering that it is admitted that the coins were identifiable, that they formed part of a collection which had been stolen, that they were urgently required by the police to bring the perpetrators of the theft to justice, that no question was raised that these coins had come into the possession of the bank otherwise than in ordinary course, that no question as to the right of property was involved in the handing over of the coins to the police for the purpose for which they were required, and that in any event only a trifling matter of thirty shillings was at stake, the instructions alleged to have been received from the head office appear to me to be such as would have justified the police or the defender in assuming at the time, either that no such instructions had been received or that they had been received after a total misrepresentation from the local branch to the head office of the true facts of the case. In either event this might, to my mind, justify a reasonable suspicion that the pursuer was endeavouring for his own purposes to shelter himself behind the bank. I cannot reach the conclusion that what passed at the bank, even if reported to the defender in accordance with the pursuer's own averment, was sufficient to substantiate beyond doubt that his motives in retaining the coins were laudable and innocent, and that his duty to his employers alone prevented him from acceding to the request to part with the coins. Indeed I think it is doubtful in law whether the pursuer's public duty to render every assistance possible to the police in the exercise of their duties was not paramount to his duty to his employers, and I am not prepared to assume that the defender should have accepted the law on this point to be as stated in the pursuer's averments in condescendence 10. Nor do I think that it can be overlooked that it would not be extravagant for the defender to have assumed that the only obligation on the pursuer after parting with thirty shillings of the bank's money in exchange for the coins was to account to the bank for thirty shillings in current coin, and that the pursuer, without any fraudulent intent, might have considered himself justified in retaining possession of the coins he received if they were of interest to himself or likely to be so to any of his friends. For these reasons I have come to the conclusion that the defender might reasonably have suspected that the pursuer, without any fraudulent intent, had appropriated the coins received to himself, and that the property in them had never de facto been transferred to the bank. The averments as to what the pursuer said and did do not appear to me to be sufficient to exclude such a suspicion, and accordingly I am of opinion that he has not relevantly averred want of probable cause on the part of the defender in charging him with reset. But if I am wrong in so thinking, it seems to me to be at all events clear that the pursuer has not averred such complete want of probable cause as could be used to strengthen and support his averments of malice, and as his averments of malice are insufficient in themselves I am of opinion that the action must be dismissed.

I have dealt with this case at greater length than I should otherwise have done in respect that it was argued before me with much earnestness and ability by leading counsel of the highest standing at the Bar. But it appears to me somewhat ridiculous that any necessity for raising such an action should ever have arisen. The least modicum of tact or common sense on one side or the other might have avoided the proceedings which were eventually taken. I am at a loss to understand the attitude taken up, according to the pursuer's averments, by the officials at the local branch. There should have been as little difficulty and as little delay at the start in handing over the coins to the police for the purpose for which they were required as there was apparently at the end after the pursuer had been arrested. Instead of wasting time, steps should have been taken immediately to provide the police with the evidence required to bring a criminal to justice. To suggest, as is done on record, that the defender should have availed himself of the powers for search of stolen goods conferred on him by the Glasgow Police Acts, and should have searched the bank, appears to me to be foolish in the extreme. In criticising the action of the defender, it must at least be said that his defences show that it was represented to him that the pursuer had taken up a much more aggressive and obstructive attitude than his own averments represent. Further, the result of the defender's charge shows that the obstructions were easily surmountable by the local branch. But even so, it appears to me that he acted somewhat hastily, and that under the circumstances he would have been well advised to have got into telephonic

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communication through his subordinates with the head office in Edinburgh before resorting to a charge of reset against the pursuer.”

The pursuer reclaimed, and argued—It was proposed to strike out the words “and without probable cause” from the first issue. The second issue was not now asked for. The simple issue now was whether the pursuer had been illegally charged with reset. There was no justification for obtaining the warrant. The Procurator-Fiscal, while ostensibly acting in discharge of his powers, was really acting beyond his powers in arresting the pursuer on a charge of reset. No privilege attached to such an abuse of office. There was nothing clandestine in the conduct of the pursuer, and thus the requisites of “reset” were absent—Hume, pp. 113 and 115, vol. i; Alison, vol. i, p. 328. In this case the object of the alleged reset was not “property’' in the ordinary sense, but “money” which was outside the law of vindication—Bell's Prin., par. 528. In dealing with “coin” as with “bearer-bonds” it was sufficient that proper value had been given— Walker & Watson v. Sturrock, 35 S.L.R. 26. Even if it had not been money, the circumstances of the case did not justify a charge of reset. Being money, pursuer could not be charged with reset on what was an innocent possession. Therefore the obtaining a warrant for the apprehension of the pursuer was not an “act done” in the sense of section 59 of the Summary Jurisdiction Act. The purpose of the Act was to obtain the conviction of persons charged with offences under the Act. Here the purpose was to make the pursuer produce certain coins which were not in his possession but in the possession of the bank, as defender knew. Had the charge been proceeded with the defender would not have got possession of the coins. He had therefore acted without the protection of the Act. Where, as here, the defender's action was outwith the scope of the Act then there was no obligation on pursuer to prove “malice” and “want of probable cause”— Bell v. Black, 1863, 3 Macph. 1026; Nelson v. Black & Morrison, 1866, 4 Macph. 328, 1 S.L.R. 83; Murray v. Allan, 1872, 11 Macph. 147, 10 S.L.R. 85; Bell v. Morrison, 1865, 5 Irv. 57; Ferguson v. M'Nab, 1885, 12 R. 1083, at p. 1089, 22 S.L.R. 717; Russell v. Lang, 1845, 7 D. 919; Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii), sec. 88. The case should be sent to trial by jury.

Argued for defender—The defender's proceedings were within the scope of the Act, and the action therefore must be dismissed. Section 59 gave protection to the. Procurator-Fiscal even if the motive were oblique. It was sufficient that the proceedings bore to be under the Act. The section was purposely made very wide, and pursuer must prove more than “malice and want of probable cause.” Pursuer must be held to admit facts stated on record which he had not denied. The innocence of the pursuer was not a necessary inference from these facts. Every element of the crime of reset was present except what was in the mind of the pursuer. There was thus probable cause. Further, his averments did not disclose a case showing that the Procurator-Fiscal had acted so extravagantly as to be outwith the protection of the Act. Malice must be specified— Beaton v. Ivory, 1887, 14 R 1057, 24 S.L.R. 744; Chalmers v. Barclay, Perkins, & Company, Limited, 1912 S.C. 521, per Lord Salvesen at p. 532, 49 S.L.R. 465; Ferguson v. M'Nab, 1885, 12 R. 1083, 22 S.L.R. 717. This was one of the cases foreseen by the statute which gave absolute protection even in case of malice. Where averments of malice were equally consistent with malice and the absence of malice, then the privileged party was presumed to have acted without malice— AB v. XY, 1917 SC 15, per Lord Salvesen at p. 22, 54 S.L.R. 37; Rae v. Strathern, 1924 S.C. 147, 61 S.L.R. 93. The warrant was duly and properly obtained, and the defender could only be made responsible if it were shown that it was obtained maliciously and without probable cause. Except where a conviction had been obtained and then quashed, the protection given by the Act was absolute. In any event before the case went to a jury, a proof as to whether the defender acted ultra vires of the Act would be necessary— White v. Dixon, 1875, 2 R. 904; M'Creadie v. Thomson, 1907 S.C. 1176, 44 S.L.R. 783; Williamson, 1915 S.C. 295, 53 S.L.R. 433.

At advising—