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SCOTTISH_HoL_JURY_COURT
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(1815) 3 Dow 160
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1814—15. 55 Geo. III.
SCOTLAND.
APPEAL FROM THE COURT OF SESSION, (1 st div.)
No. 11
v.
ALLEGED MALICIOUS PROSECUTION AND WRONGOUS IMPRISONMENT.
It seems that where a partner of a firm prosecutes for an alleged theft of property belonging to the partnership, and an action is brought for a malicious prosecution and wrongous imprisonment, neither the company nor the other individual partners can be dealt with as prosecutors merely because the property belonged to the firm.
It seems that an action for a malicious prosecution cannot be sustained, though the accusation be false, if the prosecutor can show probable cause for the charge.
Dicente Lord Eldon, Chancellor, that a magistrate is
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bound to terminate his commitment for further examination within a reasonable time, otherwise he will be liable in damages; but the inclination of his opinion was that the provisions of the act 1701, cap. 6, did not apply to commitments for further examination.
Facts and circumstances of the case.
At a sale of the thinnings of Lord Roseberry's woods near the Queen's-ferry, Arbuckle the Appellant, and Messrs. Taylor and Sons Respondents, Wood-merchants, in Queen's-ferry, purchased several lots. Arbuckle and his servant in bringing home their wood by mistake, as the Appellant maintained, fixed upon a lot belonging to the Taylors, and carried with them some small trees worth about 10 s. out of it. William Taylor, one of the partners of the firm of Taylor and Sons, wrote to the Respondent, Salmond, Procurator Fiscal for the county of Linlithgow, to prosecute Arbuckle for theft, in his (Taylor's) name. Mr. Salmond accordingly, in his own name and that of Taylor, petitioned the Sheriff Substitute of Linlithgow, who granted a warrant to apprehend Arbuckle and his servant for examination, and they were apprehended accordingly, on the 23d March, 1809. Arbuckle verbally offered bail to any amount, but the Sheriff Substitute refused it, and committed him to prison, under a warrant dated 25th March, 1809, for further examination, or until he should be otherwise liberated by due course of law. No copy of this warrant was given to the Appellant. Arbuckle then wrote a petition to the Sheriff Substitute repeating the offer of bail, but his agent neglected to present it. The Appellant then petitioned the Court of Justiciary,
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Action.
The Appellant then brought an action for a malicious prosecution and wrongous imprisonment, at common law and under the statute 1701, cap. 6, against the Taylors as a company and as individuals, and against Salmond the Procurator Fiscal; and against Cunningham the Sheriff Substitute, concluding alternately for the penalties under the statute 1701, or damages at common law.
Defences.
For William Taylor it was stated in defence, that he had probable grounds for the accusation, and acted bonâ fide. For the firm and the other individual partners it was answered that the petition on which the warrant of commitment was granted was in the name of William Taylor only, without the knowledge of the others, and that they had no concern with the matter. For Salmond the Procurator Fiscal, it was stated that he granted his concurrence
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Judgment of the Lord Ordinary and Court of Session assoilzieing the Defenders.
After some previous proceedings, the Lord Ordinary (Bannatyne) pronounced an interlocutor assoilzieing Cunningham, on the ground that no written petition for being admitted to bail was presented to him, and that even if it had, the commitment being for further examination, he was entitled to refuse the liberation on bail, and that there was nothing stated as a ground at common law for holding the commitment malicious or injurious; assoilzieing Salmond, because the signed information would have warranted an application by him as Procurator Fiscal, and that the only concern he had with the matter, further than giving his concurrence as Procurator Fiscal, was as agent for William Taylor, in which view no circumstances had been stated which could make him personally responsible for any irregularity or wrong supposed to have taken place in the proceedings; also assoilzieing the firm of Taylor and Sons, and the partners as individuals, who had taken no part in the proceedings, and therefore were not responsible. As to William Taylor, an additional condescendance was ordered. To this judgment the Court adhered, except as to the Taylors, with respect to whom the Lord Ordinary was instructed to receive an additional condescendance of what he averred and offered to prove against them, both as a company and as individuals. A condescendance and answers were given in, and
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For the Appellant, with reference to the alleged illegality of the mode of prosecution by Taylor in his own name, ad vindictam publicam, were cited the cases of Lockart v. Lee, July 1751.— Robb v. Halliday, 1767, Maclaurin Crim. Ca. 299.— Geddie v. Dempster, Nov. 1767.— La Motte v. Jardine, July 1797, Macl. Crim. Ca. 382.— Dundas v. Belsh, Jan. 1806. And as to the point of Bona fides, Jardine v. Creech, 22d June, 1776.— Anderson v. Ormiston, Jan. 1750.— Grœme v. Cunningham, March 1765.— Woods v. Gordon, March 1812.
For the Respondent, W. Taylor, with reference to the point of probable cause, were cited; Lindsay v. Kinloch, Burnet Crim. Law, 328, n.— Jamieson v. Napier, Kilk. 160.— Henderson v. Scott, Feb. 1793, Fac. Coll. Græme v. Cunningham, March 1765, Sel. Dec. For the Respondent, Cunningham, Fife v. Ogilvie, 1762.
Counsel: Sir S. Romilly and Mr. Adam for Appellant; Solicitor General for Scotland for Respondents.
July 10, 1815.
Judgment.
Singular practice of joining persons in an action for damages where the causes of damage are totally different.
Summons.
Inconvenience of the practice.
Act against wrongous imprisonment 1701.
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No conclusion in the summons to remove and incapacitate the magistrates, as there was in Andrews v. Murdoch, vid. ante, vol. ii. 401.
In an action against a magistrate concluding only for the money penaltiesunder stat. 1701, cap. 6, the concurrence of the King's Advocate is not necessary:— secus where the conclusion is for incapacitation and deprivation.
Whether the act relates solely to commitments for custody in order to trial, or relates also to commitments for further examination.
Your Lordships will find that this summons has no such conclusion as there was in the case of Andrews and Murdoch, viz. to have it declared that the magistrate had lost his office, and was incapacitated from holding any public trust in future. This summons concluded only for the damages which the statute gives, and I mark that circumstance because it enables me to lay out of the case a point agitated at the bar, in that case of Andrews v. Murdoch, whether it was competent for the injured party to proceed in Scotland, without what they call in that country, the concourse of his Majesty's Advocate, when he concluded that a magistrate should be deprived of his office, and be declared incapable of public trust. In that case it was further contended,—not successfully contended,—that, with respect to those sums which are given to the party imprisoned, these being pains in the nature of penalty, the party could not sue for them without the concurrence of his Majesty's Advocate. But I think it was pretty well understood both at the bar and by your Lordships, that as those pains and penalties were given in the nature of damages to a subject who had been injured, it was not necessary, if he concluded on the Act of
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I would just notice as I pass, that the Appellant in one of the cases is stated to be a timber-merchant, and in the Respondent's case he is stated somewhat flippantly, I think, to be Hugh Arbuckle, describing himself as a timber-merchant, a circumstance which
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The statute does not require that a copy of the magistrate's warrant merely to bring a party before him, should be served on the party.
The summons then states, “that Messrs. John Taylor and Sons, &c. and the individual partners of the firm, especially William Taylor the acting partner, as an individual, and W. Salmond the private agent, employed by W. Taylor, in behalf of himself and the company, and Procurator Fiscal, &c. and George Cunningham, Sheriff-substitute, &c. had committed these injuries against the Pursuer in the following manner:—Upon the 23d and 24th days of February, 1809, he attended Sales of the Weedings of Lord Roseberry's Woods,” &c. &c. (His Lordship here read at length from the summons the facts as there set forth, and of which the substance has been before stated; and after reading that passage where the Pursuer stated his apprehension, and that “no double or copy of the warrant, &c. was then, or had since been, served on the Pursuer, or in any way furnished to him,” his Lordship continued.) With reference to this I would state that, unless it be different by the common law, it appears to me that the statute does not require, where an information is given to a magistrate, and where the warrant goes merely to bring the party before him, that there should be a copy of that warrant given to the party. This is not the warrant upon which this question turns; it turns upon the warrant for further examination, which the warrant afterwards made out has been contended to be.
The Pursuer then proceeds to state—“That the officer merely showed him the paper, which he
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This circumstance has been observed upon as a circumstance of aggravation; that when they came before the magistrate on the evening of that day, he took their word of promise that they would return the next morning but one. It might perhaps be irregular on the part of the magistrate so to act, and I do not mean to say that the circumstance of his having done so might not be considered as evidence of the motives upon which he acted in other parts of the proceeding; but it is impossible to say that that irregularity, taking it merely as such, could prove that his motives were malicious, or that the irregularity can be treated as a circumstance in itself decisive, and I am surprised that it has been so much dwelt upon. Then the summons proceeds—
“The sheriff required no security for his reappearance. Accordingly they did voluntarily return for re-examination at the time appointed; and being examined, the Pursuer stated the whole
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Warrant of commitment.
Immediately after this examination, the following deliverance, it appears, was pronounced by George Cunningham:—
“Linlithgow, March 25, 1809—The Sheriff-substitute having considered the foregoing petition (viz. of Taylor) and declaration emitted by Hugh Arbuckle, wood-merchant, in Queen's-ferry, one of the persons therein complained upon before him this day, as on paper apart, grants warrant to the officers of Court, to carry the person of the said Hugh Arbuckle to the gaol of Linlithgow, and to incarcerate him therein; the keepers whereof are hereby required to receive and detain the said Hugh Arbuckle in gaol for further examination, or that he is otherwise liberate in due course of law.”
Your Lordships see that this is a warrant as it is expressed, for further examination; but then it is contended on the other side, that it is only colourably a warrant for further examination, and that these words— or that he is otherwise liberated in due course of law—make it not a warrant for further examination, but a warrant for safe custody, in order to trial; that is what they contend.
Verbal offer of bail rejected.
The Pursuer then states, and the fact is, “that he instantly offered security for his appearance at any after diet of examination, and bail to any
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Under the statute, the petition for being admitted to bail must be in writing.
The petition for bail not presented, so that the magistrate could not be charged with the consequences.
Your Lordships will permit me to observe here, that where a person is committed to custody for trial, by the Act to which I have referred, a petition may be presented to the magistrate, requiring that the party may be bailed; and it has I believe been universally agreed, that the petition must be in writing. The House will recollect that in the case of Andrews v. Murdoch, we had a great deal of discussion as to whether we could falsify a date, but it seemed to be admitted that the petition must be in writing, and then the magistrate was to cognosce whether the offence was bailable; if it is bailable, he is within a certain number of hours to admit the party to bail; and here your Lordships observe the materiality of the exact date of the petition. Now in this case there can be no doubt whatever with reference to this application, that the petitioner fails, because in point of fact, though the party did write out his petition—considering this as a commitment not merely for further examination, and insisting that even if it was, he had a right to be liberated on bail—though he did prepare such a petition, he gave it to this Mr. Watson in order to be carried to the Sheriff, and Watson never did carry it; and the consequence is, that the Sheriff never having received the petition, it is utterly impossible to charge him with neglect of duty, as if it had been delivered.
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It seems that by the statute, the written warrant expressing the cause of commitment need be lodged with the keeper of the prison, in order that a double thereof may be furnished to the party committed, only where the commitment is for custody in order to trial.
Then the Pursuer states, that “he remained in the prison to which he was committed in manner above mentioned, at one o'clock of the afternoon of March 25, 1809;” and he further states, “that Messrs. John Taylor and Sons, and William Taylor as an individual, and William Salmond, the accusers, and George Cunningham, most illegally omitted to lodge with any of the magistrates of Linlithgow, or their gaoler, or keeper of their prison, a warrant expressing the cause of the Pursuer's imprisonment, in terms of the foresaid Act.” Now if a warrant expressing the cause of the Pursuer's imprisonment must be so lodged, though the commitment be only for further examination, then this allegation is right; but on the other hand, if the statute means only that the warrant is to be lodged where the commitment is for custody for trial, then, as there was no such commitment for custody for trial, unless this can be considered as such, in consequence of the insertion of the words, “or that he is otherwise liberated in due course of law,” that allegation likewise must fail.
Conclusions in the summons.
The Pursuer further states, that he afterwards presented a petition to the High Court of Justiciary, and that Lord Armadale gave a deliverance, and appointed the petitioner to produce a certified copy of the warrant; but he was not able to get a copy of it, for that neither the warrant nor a copy thereof was to be found even in the possession of the Sheriff's clerk nor in his office, nor in the possession of George Cunningham, which facts he next morning reported in writing to the Lord Armadale. It appears that a copy was afterwards transmitted by
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Defences.
Defence of W. Taylor that he had probable cause for the complaint.
This being the summons, the defences for John Taylor and Sons, and John Taylor as an individual partner, were to this effect. The present action concludes against the defenders John Taylor and Sons, and John Taylor as an individual partner of that concern, for 5,000 l. damages, for an alleged wrongous imprisonment of the Pursuer. The defence against this action is, that the petition on which the warrant of commitment was granted was not made out in the name of John Taylor, nor of John Taylor and Sons, but in the name of William Taylor, one of the partners, and without the knowledge of the others, and they therefore insist that they should be assoilzied with expenses. Patrick Taylor puts in the same defence. William Taylor, who is the individual who gave in the information, insists that he is not liable in damages, for that he had good, or at least probable, grounds for the petition and complaint which was presented to the Sheriff by the Procurator Fiscal in his name; and that the facts having been proved by the declaration of the Pursuer himself, he was incarcerated for further examination by the Sheriff: that the facts were also proved in a precognition which was taken before the Sheriff, and that the defender acted bonâ fide in the whole transaction. The Procurator says he had nothing to do with it but in his character of agent,
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First as to the Taylors as a company, and as individuals, except W. Taylor.
The judgment assoilzieing them clearly right.
To dispose first of the whole of the Taylors, except William Taylor, it is a singular thing to be sure to be contended that if an individual thinks proper to prosecute for stealing property which belonged to that individual and others in partnership, though nobody appears in that prosecution but that individual, yet because the property was the property of the partnership, it is therefore to be dealt with as a prosecution by all the individuals in that partnership. However, the Court gave Arbuckle an opportunity of making out this sort of case; that this was a proceeding on the part of the partnership; that William Taylor acted under their directions; that all the expenses and trouble the Pursuer was at was in consequence of the conduct of the partnership, and that it was in truth their prosecution, that is, a prosecution of the company. It appears to me at least, upon looking into the evidence, that there is no possibility of maintaining these facts, and the consequence is that William Taylor must be looked upon as the only prosecutor. The interlocutor, therefore, in as far as it assoilzied all the other persons of the name of Taylor, appears to me to be clearly indisputable.
Then as to the Procurator Fiscal.
With respect to Salmond, it was contended that because having the character of Procurator Fiscal, he also interposed himself in this instance by his advice and assistance to the person who was the prosecutor, he was conjunctly liable. It seems to me, however, that unless he appeared, not merely
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With respect to those, then, alleged to have been concerned in the prosecution, there remains only the case of William Taylor, which deserves a good deal more consideration.
He also was properly assoilzied.
Case of W. Taylor, the actual prosecutor.
Whether the information must be sworn as well as signed.
Though it were true that the information ought to be sworn, yet a prosecutor proceeding on an unsworn information cannot on that account be liable in damages for a malicious prosecution, unless it was put to him to swear to his information, and he refused.
It was said that the property alleged to be stolen was of the value of 10 s. only, and that it was impossible for any man under the circumstances to conceive that Taylor could honestly charge Arbuckle with a 10 s. theft in these articles. With respect to that, your Lordships will permit me to say that I have found considerable difficulty in the case, not because I should not know how to deal with it if it were an English case, for then I should know what were the proper modes of proceeding; and I think I should know the principles upon which, if an action for a malicious prosecution were brought, I ought to adjudge that case. But I cannot be sure what are the principles (and I do not think I have had a great deal of assistance upon that point) upon which the Court of Session acts in such cases—first, as to the form of proceeding; and, secondly, as to the grounds upon which such an action for a malicious prosecution can or cannot be supported. In this case it was very strongly objected at the bar that the magistrate, Mr. Cunningham, proceeded on nothing more than a petition of Taylor, signed by Taylor, but not sworn by him. On the other hand it was contended that that was the usual mode of proceeding in Scotland; and if your Lordships will look at the
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By the law of England an action for a malicious prosecution cannot be supported unless it was malicious, and also without probable cause.
With respect to the history which William Taylor gives of this transaction, I cannot undertake to state it fully; but I think I can give your Lordships a general representation of it, which will enable you to understand it, after first stating that I conceive that by the law of England an action for a malicious prosecution cannot be supported unless it is proved to the satisfaction of the jury that it was malicious, and that it was without probable cause. It has been stated, and I think correctly, that admitting it to be malicious, yet if there was probable cause for it the verdict cannot be for the Plaintiff; and that admitting it to be without probable cause, if it was not malicious, the verdict cannot be for the Plaintiff, the fact of the want of probable cause, however, being to be considered as evidence of the malice. But still it is but evidence; and if the jury should conclude upon the whole that there was not malice, such an action cannot be maintained. And the reason is
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Now it was very strongly represented at the bar that this was a most flagrant and iniquitous case of malice and oppression—of malice most evident by the nature of the information given by Taylor—of malice most evident by the nature of the evidence which was stated. I think it does appear that Taylor did not like Arbuckle. It is probable that they had disputes about elections, and that Taylor had in his mind a determination to prosecute Arbuckle if there was probable cause for the proceeding. But it appears from the evidence that when these two parties were contending to whom the property belonged, Arbuckle himself, while asserting that the property was his, had no difficulty in stating to Taylor, who was likewise a merchant in considerable trade, that he (Taylor) was a thief with respect to those articles, and that he (Arbuckle) was determined to prosecute him.
It appears that there had been previous sales at these plantations; and it is a fact clear from all the evidence that theft, or something like it, had been very common. Upon this occasion Taylor and
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Conduct of the magistrate;
Where an act of parliament prescribes any thing to a magistrate, if he does not do it he is liable in the penalty, whatever his motives may be.
The next thing to be considered is the conduct of Mr. Cunningham, the Sheriff-substitute. It has been asserted at this bar that the case, with respect to proceedings in Scotland as to magistrates, is of so much consequence, and protection is so justly due to those who are to act in the administration of the law, that I am sure your Lordships will not refuse
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Commitments for further examination stand upon grounds and principles different from commitments for custody in order to trial.
A commitment for further examination must not be made use of as a commitment for trial, and the examination must take place in a reasonable time, otherwise an action will lie against the magistrate.
I see it argued in the cases here that, attending to the principles of this statute of 1701, a commitment for further examination ought to be considered as standing upon the same principle as a commitment for custody in order to trial. It would be quite answer enough to say that if it is not so considered by the statute, the statute must decide, for the present, upon the subject. And supposing the statute not to have decided it, I cannot bring myself to think it would be a wholesome doctrine that a commitment for further examination should be looked to in the same way, or upon the same principle, as a commitment for custody in order to trial. If I understand the law upon this subject, a commitment for further examination is not a proceeding against the party, but a proceeding for his benefit. It is a proceeding with a view to protect him against
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Andrews v. Murdoch, vid. ante, vol. ii. 401.
Now in the case of Andrews v. Murdoch, if I do not misrecollect the circumstances of that case—it is
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Then we are told further that the magistrate did wrong—and I am sure I cannot take upon myself to say it is otherwise—in taking the declaration without the oath of the party, and in taking the precognition under the subsequent circumstances stated at the bar.
Lord Chancellor inclined to think that terms of statute of 1701 do not apply to warrants, &c. for further examination.
If I were to state my own opinion upon the subject, I should say that the strong inclination of that opinion is that a warrant for further examination is not a warrant in respect of which the terms of the statute apply. But I do not mean to conclude myself by any thing I shall now say upon the subject; I think, however, that this warrant may fairly be considered as a warrant for further examination; for though the words are “for further examination, or that he is otherwise liberated in due course of law,” he might be liberated by due course of law before any further examination. If, for instance, the Prosecutor had come and stated that he had discovered circumstances which satisfied him that there was no intention to steal, there would have been no occasion for further examination, and I think it would have been rather too much to say that, because the warrant had these concluding words, it was not a commitment for further examination. But then it is said, if it was a commitment for further examination, you did not further examine. The question, however, is whether the reasonable time for further examination had elapsed before the Pursuer was relieved by Lord Armadale's order; and next, whether the action could be sustained upon such a summons as this, supposing the warrant to be under colour of a warrant for further examination, a warrant for quite a
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Lord Chancellor thinks that the Prosecutor ought to be assoilzied because he had probable cause for the proceeding.
And also thinks that the magistrate ought to be assoilzied;
But is of opinion that the cause as to them should be remitted for review.
It has therefore struck me that the proper way of disposing of this case at present will be to affirm the interlocutors as to the complaint against the company, and the individuals of that company, who were not Prosecutors; to affirm them, also, as far as they assoilzie Salmond, who was acting in the character I have mentioned; and with respect to William Taylor, my judgment certainly as an English Judge would be conformable to the judgment of the Court of Session, that he also ought to be assoilzied; not because I think Arbuckle guilty, or that he is otherwise than innocent, or that he would not turn out to be innocent if the case were sifted to the bottom, but because on English principles such an action could not be maintained, unless the Prosecutor had acted maliciously, and without probable cause. I think under the circumstances it cannot be justly said that there was not probable cause to accuse; and indeed Arbuckle himself has so far given evidence against himself, that he threatened the same accusation against the other, if they turned out to be his property; and I cannot say that the circumstances do not amount to a probable cause for inquiry and investigation, carried on under the form of accusation. Upon these grounds I should be for assoilzieing William Taylor, but not being quite sure what are the grounds upon which, in administering the law of Scotland, I should proceed, I should humbly call on the Court of Session to review their determination. And with respect to the
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Judgment remitted for review as to Taylor the Prosecutor, and Cunningham the Magistrate;—affirmed as to the other parties.
Solicitors: Agent for Appellant, Campbell.
Agent for Respondent, Grant.