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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Young and Company, William Young, John Young, Alexander Pitcairn, and George Young - Giffor - Jeffre - Cuninghame v. John Leven - Warre - Wetherel - Moncreiff [1822] UKHL 1_Shaw_179 (8 July 1822)
URL: http://www.bailii.org/uk/cases/UKHL/1822/1_Shaw_179.html
Cite as: [1822] UKHL 1_Shaw_179
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SCOTTISH_HoL_JURY_COURT
Page: 179↓
(1822) 1 Shaw 179
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
1 st Division.
No. 39.
v.
Subject_Slander — Reparation — Public Officer — Process. —
Circumstances in which it was held, (reversing the judgment of the Court of Session,) that a pursuer having alleged that he had been dismissed from a public office in consequence of the false allegations of certain parties, and had otherwise suffered damage from their acts, was not entitled to recover damages against them jointly and severally, it appearing that the representations and acts alleged by him were not done jointly and severally by the defenders.
Question Raised, but not decided, whether an action be relevant for damages on account of representations made, on probable grounds, against a public officer to his superiors in office, and in consequence of which he was dismissed ?
Early in the year 1804, Mr. Leven, who had been for upwards of thirty years engaged in the business of the Excise, was appointed Collector for the county of Fife, and fixed his residence in the town of Burntisland. The appellants, William Young and Company, were distillers near to that town, (William and John Young being the partners,) and Alexander Pitcairn and George Young were members of the magistracy,—the former being the Provost, and the latter one of the Bailies. Immediately prior to Michaelmas 1806, it had become known that Parliament was about to be dissolved; and as Burntisland was the returning burgh, in the district in which it is situated, for sending a representative to Parliament, a good deal of excitement was produced. On the part of the appellants, it was alleged that Mr. Leven made an attempt to canvass for the office of Provost of the burgh, and otherwise to interfere with its politics. Mr. Leven admitted that a proposal had been made by some of the burgesses to elect him Provost, but denied that he had taken any active steps for that purpose, or that he had any political object in view. Having learned, however, that some communication had been made to the Board of Excise and Lords of the Treasury upon the subject, he required the Magistrates of Burntisland to explain to him whether this had been done by them, and in answer they addressed to him the following letter:—
“Burntisland, 1st Nov. 1806.— Sir—After the communication you made to us respectively yesterday, we thought it our duty to meet together this morning to deliberate upon the business you mentioned, which you may believe we feel sincerely for your situation. After deliberating fully, the only determination we can bring ourselves to is, that we had no hand, directly or indirectly, in bringing any charge against you. We cannot see it our duty as Magistrates to
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interfere in wiping away any thing that has been laid to your charge respecting the late Michaelmas election, more especially as we were all perfectly ignorant of any information being lodged against you. It is true, Provost Pitcairn mentioned to-day to us what he said to you yesterday in conversation, that the last time he was in Edinburgh, about the 17th or 18th of October, that he was accosted by many people there, and by some high in rank and office, who inquired at him if what they had heard about Collector Leven's interference at the late election of Magistrates and Council in Burntisland was true, that he wanted to be Provost, &c. Mr. P. gave as evasive and favourable answers as possible; but one gentleman insisted upon having it in writing, which Mr. Pitcairn, with much reluctance, complied with on the 22d ult. But, even previous to this information, it is evident that the complaint had been lodged with the Lords of the Treasury without the knowledge of us, or any of us, or any in this place that we know of. As we cannot deny your interference at the late election, we do not know how we can in any shape interfere in your favour, as we understand there is nothing else laid to your charge but that interference. These being our sentiments, we see nothing we can do, either for or against you, in this disagreeable business. (Signed) Alex. Pitcairn, Thomas Orrock, John Archibald, George Young, John Haxton.”
A few days thereafter, the Magistrates of Burntisland addressed the following memorial to the Lords of the Treasury:—
“Your memorialists are aware of the necessity of arming the officers of Excise with the most extensive powers, in order to ensure the due collection of that most important branch of the public revenue; and they rely with perfect confidence on the lenity and justice of his Majesty's Ministers, that they will not countenance any harsh or unnecessary exercise of these powers, and still less permit the abuse of them by their officers for any purpose unconnected with their proper duties, and protection of the public interest. Your memorialists therefore venture, without apprehension, to represent to your Lordships, that the inhabitants of the burgh of Burntisland and its neighbourhood have of late suffered much from a most rigorous, unnecessary, and partial exercise of the authority of John Leven, Collector of Excise, and the officers acting under his direction. Your memorialists further submit to your Lordships, that they are driven to complain of the grievances they have already suffered by their apprehensions of the future, inasmuch as they cannot help fearing that the extraordinary and undue rigour which the Collector
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has of late shown a disposition to exercise against certain individuals of the burgh has not arisen merely from a zeal for the discharge of his duty; and they think themselves warranted in stating this suspicion by the conduct of the Collector in September and October last, in interfering and endeavouring to obtain the political management of the burgh, and in employing some of the officers acting under him as agents for that purpose; and they have had occasion to observe that it is since the failure of that attempt they have had reason to complain particularly of the very undue exercise of his authority, which has been principally directed against such persons as, by resisting his solicitation, had exposed themselves to his resentment. That though your memorialists are persuaded that your Lordships would have strongly condemned such illegal and irregular interference, they have hitherto forborne to complain, and have no wish to excite your Lordships displeasure, but have stated these circumstances only as their justification for earnestly entreating that he may be removed from the collection he at present holds, with the two officers that act under him in this burgh, and exchanged for any other Collector and officers now employed in Scotland. (Signed) Alex. Pitcairn, P.; Thomas Orrock, M.; John Archibald, M.; George Young, M.—Burntisland, 10th March 1807.”
—On the same day William Young and Company addressed the following letter to Mr. Wemyss of Cuttlehill, one of the Deputy Lieutenants of the county, with a view of having the conduct of Mr. Leven and his subordinate officers brought under the consideration of the Lords of the Treasury or the Board of Excise.
“Burntisland, 10th March 1807.—We are exceedingly sorry again to trouble you on a very disagreeable subject to us; but we hope your goodness will excuse us when we state to you our grievances, in consequence of the most oppressive severity and resentment of our Excise officers since our last burgh election— by Duncan Forbes, supervisor, John Drysdale and William Torrence, officers. Indeed, such rigorous and insulting conduct we never have heard of being exercised by any officers in the Excise. We have suffered so much inconveniency and real losses in the conducting of our business, and so much vexation, that we find it will not be in our power to carry it on, if left subject to the severe oppression of these officers. We can fix upon no other reason for their conduct than being influenced by Mr. Leven, Collector, who applied to us in the most pressing manner for our interest to elect him Provost at our last Michaelmas election. This we absolutely refused, telling him that our
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Mr. Wemyss transmitted this letter, accompanied by one from himself to Mr. Ferguson, member for the county, in which he made several severe reflections upon the conduct of Mr. Leven generally. The memorial and letter were sent by Mr. Ferguson to the Lords of the Treasury; and in consequence of a communication by them to the Board of Excise at Edinburgh, an official letter was addressed, on the 24th of April 1807, by the Solicitor to Mr. Leven, stating that an investigation would take place at Burntisland on the 30th, by which time he presumed that Mr. Leven would be no longer occupied in the oollection in which he was then engaged. This letter Mr. Leven alleged he did not receive till the 28th, and the investigation proceeded before the Sheriff at the time appointed. Before, however, it commenced, Mr. Pitcairn, as Provost, laid before the Sheriff a paper, entitled Statement by Provost Pitcairn, in regard to the interference of Mr. Leven in the political concerns of Burntisland, and in which he mentioned several circumstances in support of his allegation, and represented that the conduct of Mr. Leven and his officers had become most oppressive and tyrannical since the time when he failed in the election.
* The investigation thereupon proceeded, and was directed not merely to an inquiry as to Mr. Leven's interference in political matters, but also as to his conduct towards the traders, and particularly in exacting interest on arrears from William Young and Company. After it was concluded, that Company addressed a letter to the Board of Excise, accompanied by an account-current, in which they represented that they had made two separate payments to Mr. Leven, the one on the 27th November 1804 of £400, and the other on the 18th of January 1806 of £ 823.10s., for which he had not given them credit, although they held the receipts subscribed by him.
_________________ Footnote _________________ * The material parts of this Statement will be found recited in the opinion delivered by the Lord Chancellor. See postea, p. 198.
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The result of the investigation having been reported to the Lords of the Treasury, an order was sent by them to the Board of Excise, in consequence of which, the Secretary was instructed to write the following letter to Mr. Leven:—
“August 11. 1807. The Commissioners have this day received a letter from the Secretary of the Treasury, dated the 8th instant, stating that their Lordships have had under consideration this Board's report, transmitting one from Messrs. Bonar and Grant, relative to the investigation into the complaints against your conduct, and of other officers in Burntisland. And in regard to the first charge, their Lordships are of opinion that there is nothing in the evidence which calls for their interference, further than to express their entire disapprobation of officers of the revenue taking an active part in the local and municipal politics of any burgh. But with respect to that part of the second head of the charge which particularly affects you, namely that of taking interest from Messrs. Young and Company for the duties payable by them from the legal days of payment to the date of the actual receipt of the money, and receiving from Mr. Young a larger sum for duties than was actually due, their Lordships consider these charges as bearing a very different and much more serious complexion, and of such a description as to call for your immediate dismissal from your situation. In obedience, therefore, to their Lordships' commands, the Commissioners of Excise dismiss you from your office of Collector under them, and you are to deliver over the charge thereof, together with the books and stores, and your commission, to Mr. Campbell, General Supervisor, who is directed to repair to Burntisland for that purpose.”
At the same time the following circular letter was issued on the subject by the Board:—
“In consequence of complaints having been presented to, his Majesty's Treasury against the Collector and two other officers of Excise, for interfering in the politics of a burgh, and other improprieties of conduct, and their Lordships having had under their consideration the result of the investigation which took place regarding the same, are pleased, by letter dated 8th instant, to acquaint the Commissioners of Excise, that, with respect to the first charge, they are of opinion there is nothing in the evidence which calls for their Lordships' interference, further than to express their entire disapprobation of revenue officers taking any active part in the local and municipal politics of any burgh, as such conduct must necessarily
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hamper them in the due discharge of their duty as a revenue officer, and expose them to suspicions which cannot but be attended with prejudicial consequences; and their Lordships have therefore desired to be expressed to the two officers their strong displeasure at their conduct. But with respect to that part of the second head of charge which particularly affects the Collector, namely that of taking interest from traders for the duties payable by them from the legal day of payment to the date of the actual receipt of the money, their Lordships consider these charges as bearing a very different and much more serious complexion, and of such a description as to call for the immediate dismission of the Collector from his situation. In obedience to these orders, the Commissioners have dismissed this person immediately from the office of Collector, and have reprimanded the two officers. And I am directed by the Board, that if in any instance you shall be found to have thus improperly taken in terest from any of your traders for money due by them to the revenue, you will also certainly receive the same censure; and you, your supervisor, and officers, are in no manner of way to interfere or meddle with the local or municipal laws of any burgh, as before mentioned, or in elections, as so strongly pointed out in your general instructions, otherwise you will meet with the severest displeasure of the Board; and that none may pretend ignorance, you will enter this letter into your general letter-book”
Soon after the dismissal of Mr. Leven, an action was raised by the Board of Excise against William Young and Company in the Court of Exchequer for payment of arrears of duties, which they had refused to pay, on the ground of the alleged double payments which had been made by them to Mr. Leven. Judgment passed against them, on the ground (as was alleged by them) that such a plea was not admissible against the Crown, and that they must seek their relief from Mr. Leven. A report of this trial having appeared in the Edinburgh Evening Courant, William Young and Company addressed and published a letter to the Editor, explaining that such was the ground of the decision, and that they had “brought an action before the Civil Court against the Collector, not only for the repetition of the large sums of principal, but also interest, which had been illegally exacted from us.” They further stated, that “the Collector was dismissed by the Lords of the Treasury for receiving from us a larger sum for duties than was actually due, or was carried to account.” They accordingly brought the action here alluded to; but, after a great deal of investigation, Mr. Leven was assoilzied, with expenses,
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“In the first place, the said William Young and Company, or the said William Young and John Young, and the said Alexander Pitcairn, who, with the concurrence of certain members of the Town-council of Burntisland, over whom they had an influence, secretly transmitted to the Lords Commissioners of our Treasury in London, and to the Commissioners of Excise in Edinburgh, certain complaints against the pursuer, falsely and maliciously alleging that he had illegally interfered in politics while he held the office of Collector of Excise, and that he had used the influence derived from his office, unduly, to procure votes in his favour, and that he had harassed and oppressed those traders within the bounds of his collection who are said to have opposed his views. 2dly, The said William Young and Company, or the said William Young and John Young, falsely and maliciously alleged to the Commissioners of Excise, or to certain officers of Excise under them, that the pursuer had unjustly and dishonestly charged and uplifted from the said William Young and Company, or William Young and John Young, a larger sum for duties than was actually due by them to Government, or was carried to account by him. 3dly, The said William Young and Company, or the said William Young and John Young, not only repeated, in various public companies, their calumnious and defamatory charges against the pursuer, but thereafter withheld duties from Government, on pretence that they had overpaid certain large sums of money to the pursuer while Collector of Excise, and openly made the same false and malicious allegations in their defence against an action at the instance of the prosecutor for the Crown against them in our Court of Exchequer in Scotland. 4thlY, The said William Young and Company thereafter inserted or caused to be inserted in the Edinburgh Evening Courant, of date the 17th day of July 1810, a most calumnious advertisement, to the manifest hurt and prejudice of the character and reputation of the pursuer, as will appear from a copy of that newspaper herewith produced. 5thly, The said William Young and Company, or the said William Young and John Young, having raised an action in the Court of Session at their instance against the pursuer, for payment of the sums of money which they falsely and maliciously alleged had been illegally exacted from them by the
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pursuer, and knowing that the pursuer had publicly advertised for sale a property in the town of Greenock belonging to him, they, upon the dependence of the said action, raised and executed letters of inhibition at their instance against the pursuer, for the malicious purpose of injuring the credit of the pursuer to the utmost of their power. 6thly, The said William Young and John Young, or either of them, raised and circulated a most groundless and injurious report that the pursuer had burned or destroyed his official books with some fraudulent intention. And, lastly, the said William Young and Company, and, the said William Young and John Young as individuals, and the said Alexander Pitcairn, to the great injury of the pursuer's reputation and fortune, raised and circulated a variety of other unfounded and calumnious reports, to be more particularly condescended on in the course of the process to follow hereon.”
Mr. Leven thereafter brought a supplementary action against George Young, and in which he concluded against all the defenders jointly and severally. He then moved for and obtained a diligence for recovering from the Board of Excise the Memorial by the Magistrates of Burntisland to the Lords of the Treasury in March 1807, the letter by Young and Company to Mr. Wemyss, and all other letters transmitted to the Lords of the Treasury or Board of Excise respecting his conduct, and the Statement of Provost Pitcairn prior to the investigation. The Commissioners of Excise having objected that they were neither bound nor entitled to exhibit these documents, the objection was repelled both by the Lord Ordinary and the Court. The defenders then moved for a diligence to recover the reports which, in consequence of the investigation, had been made to the Board of Excise, and by them to the Lords of the Treasury; but this having been resisted by the Board of Excise, the Lord Ordinary refused the diligence, “in respect the present action of damages at the instance of John Leven, late Collector of Excise, is founded upon the allegation of false and injurious charges having been made by the defenders against the pursuer to the Board of Excise in Scotland, and to the Lords of the Treasury; that the investigation which took place by authority of the Board, or the opinion the Commissioners may have formed upon such information, cannot, in the opinion of the Lord Ordinary, although produced, afford a well-grounded defence against the conclusions of the present action, and that the Board are in no shape bound to exhibit the papers called for by the defenders.” To this judgment the Court adhered, and refused to allow an appeal.
Thereafter the Lord Ordinary, on advising the case on the merits, found, “That a memorial, in name of the Provost and
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Against this judgment the defenders reclaimed, and the Court then pronounced this interlocutor:—
“Find that the first, second, and fourth articles of the principal and supplementary libels are relevant and proven: Find that the pursuer's dismissal from office proceeded from the unfounded and groundless complaints stated by the defenders against him, whereby he sustained a grievous injury and severe loss in point of income: Repel the defences pleaded for William Young and Company, and also the separate defences pleaded for the said Alexander Pitcairn and George Young: Find the whole defenders in both actions conjunctly and severally liable to the pursuer in damages; but, before answer as to the amount of the damages, appoint the pursuer to lodge, within ten days, a specific conde scendence of the same, for the consideration of the Court; and find the whole defenders in both actions liable, conjunctly and severally, to the pursuer in the expenses of process.”
To this interlocutor they adhered, and thereafter remitted the following issues to the Jury Court:—
“What loss and damage the pursuer has sustained by being dismissed from the office of Collector of Excise for the county of Fife, on the 13th day of August 1807, in consequence of the unfounded and groundless complaints of the defenders ?
What damage the pursuer has sustained, independent of the loss arising from his dismissal from said office, by the calumnies contained in the first, second, and fourth articles of the summons found relevant and proven, viz.—1. The said William Young and Company, or the said William Young and John Young, and the said Alexander Pitcairn, with concurrence of certain members of the Town-council of Burntisland, over whom they had an influence, secretly transmitted to the Lords Commissioners of the Treasury in London, and to the
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Commissioners of Excise in Edinburgh, certain complaints against the pursuer, falsely and maliciously alleging that he had illegaily interfered in politics while he held the office of Collector of Excise, and that he had used the influence derived from his office, unduly, to procure votes in his favour; and that he had harassed and oppressed those traders within the bounds of his collection who are said to have opposed his views.—2. The said William Young and Company, or the said William Young and John Young, falsely and maliciously alleged to the said Commissioners of Excise, or to certain officers of Excise under them, that the pursuer had unjustly and dishonestly charged and uplifted from the said William Young and Company, or from the said William. Young or John Young, a larger sum for duties than was actually due by them to Government, or was carried to account by him.—3. The said William Young and Company thereafter inserted or caused to be inserted in the Edinburgh Evening Courant, of date the 7th day of July 1810, a most calumnious advertisement, to the manifest hurt and prejudice of the character and reputation of the pursuer. The damages claimed are £20,000, of which, for the loss of office during the period between 13th August 1807, when the pursuer was dismissed, and the 5th of July 1809, when a new arrangement took place, at the rate of £600 per annum, amounting to
£1023 8 2
Salary at the rate of £600 per annum, from 5th July 1809 till 5th April 1817, seven years and three quarters, amounting, after deducting property-tax, to
4245 8 2
Also interest on the above sums quarterly, as they became due, amounting, at 5th April 1817, to
1084 2 0
£6352 18 4
For the value of the situation of Collector of Excise, or £600 per annum, from the 5th April 1817 until he shall be actually reinstated in office, or until he shall be appointed to receive salary as above.
For damages arising, independent of his pecuniary loss, from the foul calumnies to which he has been exposed, and the state of degradation in which he has been placed, and from the cruel state of anxiety and suspense in which he has been kept for upwards of ten years.” *
_________________ Footnote _________________
* Before these issues were tried, an official letter had been sent to Mr. Loven, announcing that he was to be reinstated in his office of Collector as soon as a vacancy occurred; and he was subsequently allowed a pension of £400 per annum.
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A verdict was then returned by the jury, by which, “in respect of the matters of the said issues proven before them, they assess the damages due by the said defenders to the said pursuer at the sum of £2000 sterling.”
Mr. Leven, conceiving that these damages were too small, moved the Court for a new trial; and the Court accordingly set aside the verdict, remitted the case to be again tried by a jury, and directed that a separate return should be made on each of the issues. In consequence of this remit, a verdict was returned by another jury, “that, in respect of the matters of the said issues proven be fore them, they find for the pursuer on the first issue £1800, and on the second issue £200, and assess the damages at said sums accordingly.” The Court thereupon (10th December 1818) found “the defenders conjunctly and severally liable to the pursuer in the two sums of £1800 and £200 sterling of damages, and decern for the same accordingly;” and they also found them liable in £366 of expenses, including those of the new trial. *
The defenders then appealed on the following grounds:—
1. That the action was irrelevant, because, as Mr. Leven was a public officer, who the defenders believed had been guilty of illegal conduct in his official capacity, and as they had made their complaints to his superiors, and communicated them to no other parties than those to whom it was necessary to communicate them in order to the investigation; and as they had done so on probable grounds, as was established by the circumstance of Mr. Leven having been dismissed; and as no malice had been proved against them, the action ought to have been dismissed.
2. That as the dismissal of Mr. Leven had been on account of the unlawful exaction of interest, which had not been complained of by the defenders, but had been discovered in the course of the investigation, it was not consistent with justice to subject them in damages for his loss of office, seeing that it did not proceed on any of the charges which they had made against him; and if the Lords of the Treasury and the Board of Excise had erred in so dismissing him, the defenders ought not to be made answerable on that account.
3. That the Court of Session ought not to have allowed the Board of Excise to have produced the documents called for by Mr. Leven, seeing that they were private communications made as to the conduct of a public officer, which ought, on principles of expediency, not to be disclosed; and at all events they acted unjustly in withholding from the defenders the documents which they were desirous to have recovered in support of their defences,
_________________ Footnote _________________ * Not reported.
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4. That the issues which were sent to the Jury Court were erroneous, and of such a nature as to preclude the defenders from pleading their lawful defences; and that although it was competent to grant a new trial on account of damages being excessive, yet there was no authority for doing so because they were too small.
5. That the interlocutors were inconsistent with the libel and relative evidence, as the defenders were found conjunctly and severally liable in damages, although it was established that several of them were no parties to the acts for which these damages were awarded;—and,
6. That it was contrary to justice to subject them in the expenses of the new trial, on which the same verdict as the one which was set aside had in substance been returned.
To these pleas it was answered,—1. That the action was not rested on the ground that the pursuer had been dismissed for taking interest, but that he had suffered loss in consequence of the misrepresentations and the false charges exhibited against him by the defenders; that even with regard to the charge of exacting interest, it had been entirely misrepresented by the defenders, and the Board of Excise had become so satisfied that the pursuer had been unjustly treated, that shortly before the issues were sent to the Jury, he had been reinstated in office.
2. That although a public officer may have been dismissed on one charge as well founded, yet this could not protect the complaining parties, who made false and calumnious accusations, from being liable in indemnification; and that such had been the case on the part of the defenders, because both the charge of interference in political matters, and of withholding large sums of money, had been disproved; and further, that the advertisement in the newspapers was of itself sufficient to entitle him to damages;—and,
3. That as the defenders had been united together in the attacks which they had made upon the pursuer, he was entitled to redress from them conjunctly and severally.
The House of Lords found, “That none of the acts alleged by the respondent, in his first and supplementary summons of da mages, to have been done by all or some or one of the appellants, the defenders in such actions, are so alleged or proven, as to justify the finding that the first, second, and fourth articles of the principal and supplementary libels are relevant and proven; and that the whole defenders in both actions arc con
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My Lords, in the present state of the business, it will be desirable that I should not go minutely through this case. But the appellants state the case thus:—After representing that William Young and Company—a company formed, as I before stated, of William Young and John Young,—had long been established in the neighbourhood of the royal burgh of Burntisland in Fifeshire, as distillers and extensive farmers,—and after describing the extent to which they had carried on their business, and the extreme regularity with which they had carried it on, they proceed to represent what they state to have been the conduct of Mr. Leven, the Collector of Excise under whose survey they were, and the officers under him; and with respect to the allegations on both sides, perhaps it may be enough to say, that they are extremely contradictory to each other. It is then represented that the burgh of Burntisland is one of four burghs, in the district of Scotland in which it is situated, that send a representative to Parliament; that the member is chosen by a delegate from each burgh, who is chosen by the respective towncouncils; and they state that this makes a seat in these corporations generally an object of some consequence; and those who know the manner in which the representatives in Parliament are elected in Scotland, can have little doubt upon that point.
My Lords, Mr. Leven suggests that his interposition with respect to the local politics of the place had no connexion whatever in fact with what may be called the election politics of the place; by election politics meaning elections for members of Parliament. On the other hand, it is the purpose of the appellants to represent that Mr. Leven, in consequence of a general election of members of Parliament being expected in Burntisland—that being what is called the returning burgh, entitling that burgh to the casting vote in case there should be an equality of votes,—a connexion with that corporation became, for that reason, of a good deal of consequence with respect to the elections for those four
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Now, my Lords, this letter, which was sent by the Magistrates, was of the date of the 1st of November 1806, and the memorial I shall have occasion to mention to your Lordships presently, was not dated till the 10th of March 1807; so that this letter cannot have a reference to that memorial as a communication made either to the Board of Excise or the Lords of Treasury, but must have reference to some other communication made by the Magistrates. What they state is this—[His Lordship here read the letter of 1st November 1806. See p. 179.] This letter is signed ‘Alexander Pitcairn,—Thomas Orrock,’ who is made no party to this suit,—‘John Archibald,’ who is made no party to this suit, ‘—George Young,’ who is made a party to this suit,—and ‘John Haxton,’ who is not made a party to this suit.
They then proceed to represent that the conduct of the respondent was very much influenced by his disappointment in the pursuit of this office of Provost of the burgh, that he ceased to employ individuals whom be had before employed, and particularly this Mr. Haxton, who was Dean of Guild and a corporator, and that, by his officers, he was particularly rigorous to the appellants; and then they go the length of asserting, as a motive for that rigour, their refusing to vote for him, and to further his intention to become Provost of this burgh.
My Lords, upon the 10th of March 1807, the Magistrates of Burntisland sent the following memorial to the Lords of the Treasury:—
“Your memorialists are aware of the necessity of arming the officers of Excise with the most extensive powers, in order to ensure the due collection of that most important branch of the public revenue, and they
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rely with perfect confidence in the lenity and justice of His Majesty's Ministers, that they will not countenance any harsh or unnecessary exercise of those powers, and still less permit the abuse of them by their officers for any purpose unconnected with their proper duties, and the protection of the public interest. Your memorialists therefore venture, without apprehension, to represent to your Lordships, that the inhabitants of the burgh of Burntisland and its neighbourhood have of late suffered much from a most rigorous, unnecessary, and partial exercise of the authority of John Leven, Collector of Excise, and the officers acting under his directions.”
It will be in your Lordships' recollection, that in the course of what was stated from these papers, and stated from the Bar, it was represented that the complaint was of the officers acting under the direction of John Leven; but no one can read this passage without seeing that there is imputed to Mr. John Leven himself, as well as his officers, “a most rigorous, unnecessary, and partial exercise of his authority.” Then they say, that they further submit that they are driven to complain of the grievances they have already suffered by their apprehensions of the “future, in as much as they cannot help fearing that the extraordinary circumstances and undue rigour which the Collector has of late shown,”(this is the Collector again, and not the officers,) “a disposition to exercise against certain individuals of the burgh, has not arisen merely from zeal for the discharge of his duty; and they think themselves warranted in stating this suspicion by the conduct of the Collector in September and October last, in interfering and endeavouring to obtain the political management of the burgh, and in employing some of the officers acting under him as agents for that purpose.” It appears that the parties construe these words, ‘the political management of the burgh,’ in different senses. On the part of Mr. Leven it has been represented, that all he had in view (and that view was suggested to him by others) was, that if he was placed in the situation of an officer of the burgh, he might remedy some malversations with respect to the property of the burgh; and that this being known to be his view, he was opposed by certain persons on that very account. Others represented, that as this was the returning burgh, it would naturally have a very great weight in the return of the members to Parliament, and that the obtaining this was his object.
Then they go on to state, “And they have had occasion to observe, that it is since the failure of that attempt they have had reason to complain, particularly of the very undue exercise of his authority, which has been particularly directed against such persons as, by resisting his solicitation, had exposed themselves to his resentment. that though your memorialists are persuaded that your Lordships would have strongly condemned such illegal and irregular interference, they have hitherto forborne to complain, and have now no wish to excite your Lordships' displeasure, but have stated these circumstances only
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The appellants state, (and I will read their own statement,) ‘that whilst this application was transmitted through the Magistrates of Burntisland, the appellants were advised also to get their application for an inquiry into Mr. Leven's conduct backed by the member of Parliament for the county. They therefore addressed a letter to Mr. Wemyss, one of the Deputy Lieutenants for the county, and who had a large estate adjoining to the burgh, in the following terms’—[His Lordship then read the letter. See p. 181] Then, in the Case which they have laid upon your Lordships' table, they desire it to be noticed, that it was not so much of the conduct of the respondent, as of his subordinate officers, that the appellants complained; but it appears to me very difficult to state that this was not a representation that the subordinate officers were acting under his influence, and that be was induced to do as he did by that which they state as the motive for his conduct.
My Lords, Mr. Wemyss forwarded this representation to Mr. Fergusson, then member of Parliament for the Fife burghs; and your Lordships will recollect there was some intimation at the Bar that the politics of the day in 1807 had something to do with this, and that there was an intention of electing a member for these burghs of a particular way of thinking in politics; but it turns out that though the complaint was made during the Administration which began in February 1806, and which existed till 1807, yet that the final act of the Treasury was an act done in the time of the Administration which succeeded the one
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Mr. Wemyss, in transmitting this application to Mr. Fergusson, who was then member of Parliament for the Fife burghs, certainly speaks very strongly in his letter with respect to Mr. Leven. One wonders a little, considering the part he actually took, that Mr. Wemyss himself was not made a defender in this action. His letter is in these terms:—
“The enclosed I received yesterday. Mr. Young is a man I have long known, and is much respected in his line. He carries on business to a great extent, and is one of the greatest improvers of land we have in the county; and if an Excise officer takes a dislike to a distiller, he can continually harass him, without being of the smallest use to the revenue. I know Mr. Leven was much disappointed at not being made Provost of Burntisland at last election, and that he is a man of very violent temper, and have no doubt he will trouble Young as much as he can. Some time ago, Captain Halkett of the Royal Navy, the minister of Aberdour, and myself as Depute Lieutenant for the parish, intended applying for his (Collector Leven's) removal on account of his very bad usage of the sailors' wives, fathers, and mothers who went to receive money from him, not only paying them irregularly, but abusing them for troubling him; but as Sir William Erskine, the member for the county, was not in London, we did not go on with it. I am perfectly convinced, from what I know of the man, you should lose no time in getting him removed.”
As I understand the Case, the gentleman to whom this letter was addressed, namely Mr. Fergusson, did write to the Lords of the Treasury, expressing very strongly his hope that Mr. Leven would be removed.
My Lords, in consequence of these representations to the Treasury, an inquiry was directed to be made into the conduct of Mr. Leven; and a gentleman of the name of Bonar, who was second Solicitor to the Excise, received the directions of the Board of Excise, in consequence of which he wrote to the respondent, on the 24th of April 1807, a letter stating that he had been directed by the Board, in consequence of a remit from the Treasury, to proceed along with Mr. Grant, general surveyor, to make an investigation into some complaints by the Magistrates of Burntisland, and that he had fixed for going over to Burntisland on that business on the morning of Thursday the 30th April, and taking the examination of such witnesses as might be adduced in regard thereto upon oath before Mr. Jameson, Sheriff-substitute. “Your collection will then, I believe, be over, so that I suppose you can at tend; and it will likewise be necessary that Mr. Forbes, supervisor, shall also attend, of which you may acquaint them.” There is a good deal of representation contained in the Case on the part of the respondent, that he had no intimation given him of the intention that there should be this inquiry, till a day or two before the inquiry was set on foot; and
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My Lords, the Case then goes on to state the commencement of the investigation, and it very particularly details the Statement then made by Mr. Pitcairn, and he alone seems to have made the charge upon which the witnesses were examined, and the inquiry proceeded; and I feel it to be proper to state this to your Lordships, because great stress was laid upon it in the discussion at the Bar. After mentioning Mr. Leven's canvass for the Provostship, and that that was unsuccessful, he proceeded to state—
“After this, Mr. Leven's conduct was such as gave us every reason to suppose that he had neither laid politics aside, nor was sorry for his interference in them. He gave public dinners to the people that had supported him, and dined with some that I am convinced he would have disdained to have been seen in company with on any other occasion. Had he shown his resentment for his disappointment by only turning off his tradesmen, or giving public dinners to his supporters, we would not have made such conduct the subject of an application to the Treasury; but it did not terminate there. To show his spirit, will mention one instance, that perhaps on any other occasion would be unworthy of notice. Lately, one of the present Magistrates, Bailie Thomas Orrock,”
(who is one of the persons that writes the letter, but who not made a defendant in this action,) “was passing along the shore, by accident, where an old house had been pulled down. Some old wood, fit only for fuel, was thrown out, and some of the bakers of the town wanting to buy it, one of them asked Mr. Or rock what it was worth. He said 20 shillings, and added jocularly, who bids more ? or something to that purpose. The Collector was pleased to summon him before the Justice of Peace Court to prove that he was an auctioneer without license, in order, no doubt, to throw a stigma on the Magistracy of the burgh. But the Justices saw through his design, and gave the decision which the case merited. All this I am now ready to prove, and I request to be allowed to prove it; but I have yet to mention the most serious part of the whole business, which I consider as particularly connected with the politics of the burgh, and which was the reason for bringing the present complaint. As the Messrs. Young did not support the Collector in his politics, they seem to have been selected for the objects of his resentment. Ever since the election, the conduct of the surveying officers has been much changed, and has been so hard upon the Messrs. Young in carrying on their business, that if it be not remedied, they are determined to give it up. Mr. William Young has been long known as a fair trader $ his sons have been but a short time in business, but their character is every way fair,
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My Lords, they then represent that the inquiry on the charges proceeded. I do not trouble your Lordships with stating at present the evidence which was given in support of these charges. The respondent likewise produced a number of witnesses on his behalf. Your Lordships will find all the evidence stated in the papers.
The gentlemen appointed to make the inquiry having made their report to the Board of Excise, there was a letter written by Mr. Pearson, and thereafter another letter written by him, both of which it appears to me material to state to your Lordships. The first, which is dated the 11th of August 1807, is in these terms—[His Lordship here read the letter of dismissal. See p. 183.]
This letter, your Lordships will observe, expresses the entire disapprobation of the Lords of the Treasury of officers of Excise taking an active part in the local and municipal politics of the burgh. With respect to receiving interest from the trader, it states that ground, if not as the sole ground, certainly as one of the grounds of the dismissal; and it is material here to observe, that whether that be a good ground or a bad ground for the dismissal of an officer, this letter states it as the ground, at least as one of the grounds, which the Lords of the Treasury assign.
The circumstances, your Lordships will recollect, were of this nature, that the Excise officers permitted the trader not to pay the duties upon
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It is therefore a general act of the Board of Excise, proceeding on the specific ground which is mentioned in this circular letter. [His Lordship here read the circular of 14th August 1807, see p. 183.] Your Lordships observe, there is no mention here of the taking sums beyond what were due, but it is put entirely upon the taking interest.
Now those two letters, the one of them alluding to two causes, the latter alluding only to one cause, express distinctly the grounds of the dismissal of this officer; and I observe that in the Court below it has been argued, as it was argued here, that it cannot be maintained, (and undoubtedly it cannot be maintained,) that if, in representations made maliciously and without probable cause, there have been several causes most maliciously, and without proper reason, stated as grounds for animadversion on my conduct, and it turns out that I am not dismissed from my office for any one of those causes, but my dismissal has been owing to a cause which has been stated as a ground for dismissing me;—if there be slander and calumny, malice, and improper motives in the other representations, and if they are representations not made in the course of the administration of justice, nor in any other proceeding which admits of consideration according to the principles of those cases which do occur in the administration of justice, it cannot, I say, be maintained that there is any reason in the world why I should not be able to maintain an action with respect to that slander and that calumny, although it did not lead to the dismissal. In this case, the damages which have been given are damages expressly calculated upon the dismissal from office; and whilst the reasons which are given by the Lords of the Treasury as the reasons for which the respondent is dismissed from office are not those stated by these parties, the consequences of the dismissal from office are taken as furnishing the rule for assessing those damages. There appears, therefore, to have been not any misstatement of the principles of law, but a misapplication of those principles to the circumstances which I am now pointing out.
After this there were representations made to the Board of Excise, and Mr. Leven complained (perhaps justly) that there were difficulties thrown in his way which he represented as unfair but into this it is not necessary to enter.
My Lords, the appellants afterwards brought an action against Mr. Leven for an alleged balance of duties,—that is, for sums overpaid, and, as supposed, double payments,—the one of £800, and the other of £400, as exhibited in the different receipts they produced. I have read very carefully the papers which were on your Lordships' table when the appeal from the decision of the Court of Session came before us with respect to those double payments of £800 and £400, and I have no difficulty in representing to your Lordships that I concur entirely in the opinion which the Court of Session formed upon that occasion, namely, that it was satisfactorily proved that though receipts had been given for those sums of £800 and £400 specifically, yet, upon looking at the
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My Lords, an appeal was taken from that proceeding in the Court of Session, relative to the double payments. I have before stated to your Lordships, that there also was a demand for repetition of the interest which had been taken, as well as those sums and I observe, in this condescendence which I have in my hand, it is represented on the part of Mr. Leven, that this House was of opinion that there was no ground whatever for that repetition of interest. My Lords, I have likewise in my hand the short-hand writer's note of the judgment the House gave, and l am sure it must be in the memory of your Lordships, that we did not mean by any means to state that it was right in Mr. Leven to leave this money in the hands of the traders, and himself to take interest; but if the traders had voluntarily paid this interest, it was a very difficult thing for them to get back again the interest. That was interest which, if anybody was entitled to have it, it was the public that was entitled to have it from Mr. Leven, and not the traders; because that interest had been paid by the traders, in consideration of the agent for the Crown giving them time to pay the principal. It was therefore interest which, if due to anybody, was due to the Crown, and not to Messrs. Young; and upon that ground we thought that this action was not sustainable, and we held that the £800 and the £400 had been satisfactorily accounted for, and we did certainly affirm that decree.
My Lords, Mr. Leven then commenced an action in the Court of Session, in which he claimed a large sum for damages, and the grounds of action were stated, under the circumstances, to be this:—I do not intend to make any observation whatever upon the forms of pleading
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Then the next allegation is this—“That the said William Young and Company, or the said William Young and John Young, falsely and maliciously alleged to the said Commissioners of Excise, or to
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There is, my Lords, another circumstance to be remarked, that the charge here is, that they had falsely and maliciously alleged to “he said Commissioners of Excise, or to certain officers under them, that the pursuer had unjustly and dishonestly charged and uplifted from the said William Young and Company, or William Young and John Young, a larger sum for duties than was actually due by them to Government, or was carried to account by him.” You observe that the respondent studiously omits there that the charge was, among other things, for taking interest on the money. He does not say one single word about that in this allegation, and that seems to be excessively material$ because, when you come to look at Mr. Pearson's second letter, which expresses the cause for Mr. Leven's being dismissed, that letter (which is a circular to all officers of Excise) says expressly that his dismissal was for that which is totally omitted to be mentioned here, namely, the receiving interest upon money which be did not call for the payment of from the trader at the time it was due.
Then, my Lords, comes the third allegation, “that the said William Young and Company, or the said William Young and John Young,
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My Lords, I do not trouble your Lordships in calling your attention further to the third, nor shall I to the fifth, nor to the sixth, nor to the seventh, for this reason, among others, that the Court of Session was of opinion, that except the first, second, and fourth, none of them were relevant; that they were not, therefore, allegations that would admit of the production of proof. I may misunderstand, and before I have done with the matter, I should be glad to be set right, if I am wrong; but I believe it was the fact, that this large condescendence in my hand became part of the proceeding, even before George Young was made a party in the suit,—that is to say, before, by the supplementary proceeding, he was made a party in the suit; and I do not therefore wonder, that, with the exception of a few sentences, his name hardly occurs in the condescendence at all; and yet he is made, under this judgment, jointly and severally answerable for the whole of these damages, and every shilling of them might be taken out of his pocket under the proceedings which have been bad.
My Lords, then, in order to enable the respondent to maintain his action, there was a summons against havers, in order to get papers from the Commissioners of Excise. The interlocutor of the Lord Ordinary directed the papers to be produced. The Commissioners of Excise objecting to-produce those papers, an interlocutor of the Lord Ordinary disallowed that objection of the Commissioners of Excise. The Excise petitioned the First Division of the Court of Session, limiting, however, their objection to particular papers. The First Division of the Court of Session, however, affirmed the interlocutor of the Lord Ordinary in favour of the now respondent in this appeal, and directed the production of the papers called for. My Lords, it becomes a very material question, not only in this cause, but in others that are now before your Lordships, what ought to be done in cases of that nature ? Your Lordships will find, that when the appellants in this cause called for the production of papers from the Board of Excise, in order the better to sustain their defences, the Court of Session thought that they ought not to allow that
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My Lords, this long condescendence was afterwards put in, and Lord Balmuto's interlocutor of the 12th of November 1816 was pronounced, which I do not trouble your Lordships with stating. It is a very long interlocutor. It proves great diligence and attention on the part of the Judge; but I observe the First Division afterwards were of opinion that my Lord Balmuto's interlocutor could not be sustained to the length to which it had gone; and on the 8th of February 1817 this interlocutor was pronounced by the Court of Session:—
“Find that the first, second, and fourth articles of the principal and supplementary libels are relevant and proven: Find that the pursuer's dismissal from office proceeded from the unfounded and groundless complaints stated by the defenders against him.”
Unquestionably your Lordships will have to determine whether that finding of the fact is according to the fact, “whereby he sustained a grievous injury and severe loss in point of in come; Repel the defences pleaded for William Young and Company, and also the separate defences pleaded for the said Alexander Pitcairn and George Young: Find the whole defenders in both actions conjunctly and severally liable to the pursuer in damages.”
I should have mentioned to your Lordships, that after the cause was over in the Court of Exchequer against Messrs. Young, the newspapers of Edinburgh, giving, as the newspapers in this town give, an account of the legal proceedings, gave an account of the proceedings in the action, from which Mr. William and John Young thought their character might suffer; and perhaps it would be a little better, if there was rather more mercy shown to character than is displayed in these publications now and then. They published, in consequence, an advertisement—this must have been four or five years, or, at all events, three or four years after the investigation—in which they desire the public to suspend their judgment upon the proceedings, and vindicating their
_________________ Footnote _________________ * See postea, No. 43.
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Then, my Lords, there were certain proceedings with a view to settle the quantum of damages, and the Court thought proper to direct two issues. The first was, “What loss and damage the pursuer has sustained by being dismissed from the office of Collector of Excise for the county on the 13th day of August 1807, in consequence of the unfounded and groundless complaints of the defenders?” Undoubtedly the question is, whether he was dismissed from that office in consequence of the unfounded and groundless complaints of the defenders? Because, if he was dismissed from that office, not in consequence of unfounded and groundless complaints, but on the ground of his having taken interest, there is no reason whatever for saying the defenders might not be liable in damages on other accounts; but they could not be liable in damages for dismissal from office, if he was dismissed from office for a cause they justly assigned, or for a cause they did not assign at all. But this goes to a Jury. Your Lordships observe, that, according to the terms of this issue, they are to take it for granted that he was dismissed from office in consequence of the unfounded and groundless complaints of the defenders, and then they state what these complaints are, which your Lordships will see presently. Then, “What damage the pursuer has sustained, independent of the loss arising from his dismissal from said office, by the calumnies contained in the first, second, and fourth articles in the summons found relevant and proven, viz. First, The said William Young and Company, or the said William Young and John Young, and the said Alexander Pitcairn, with the concurrence of certain members of the Town-council of Burntisland, over whom they had an influence, secretly transmitted to the Lords Commissioners of our Treasury in London, and to the Commissioners of Excise in Edinburgh, certain complaints against the pursuer, falsely and maliciously alleging that he had illegally interfered in politics while be held the office of Collector of Excise, and that he had used the influence derived from his office unduly to procure votes in his favour, and that he had harassed and oppressed those traders within the bounds of his collection who are said to have opposed his views.” That he was not dismissed upon this complaint, appears to me quite clear. “Secondly, The said William Young and Company, or the said William
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Now, my Lords, nothing is more clear than this, that if these issues had been directed by any Court of Equity in England to any Court of Common Law, that Court would have been bound to suppose that all the parties to these issues as defenders were answerable jointly and severally for those damages. The Court, therefore, which tried the issues, could do no more than say what was the amount of damages. Taking all this statement to be true, (for they must take all this statement to be fact,) they could not try the fact at all;—they could not try for what cause he was dismissed from his office;—nor could they try the question, whether Alexander Pitcairn or George Young were, by reason of any act they had done, or omitted to do, liable to any of that damage which was referred to in the fourth allegation, namely, the advertisement in the Edinburgh Evening Courant;—nor could they consider whether that was a cause of action at all.
My Lords, they try it as well as they can. The damages are supposed to be estimated in this way:
“The loss of office during the period be tween 15th August 1807 when the pursuer was dismissed, and the 5th of July 1809 when a new arrangement took place, at the rate of £600 per annum, amounting to £1025: 8: 2;”
then “salary at the rate of £600 per annum from 5th July 1809 to 5th April 1817, seven years and three quarters, amounting, after deducting property-tax, to £4245 : 8: 2; also interest on the above sums quarterly as they became due, amounting at 5th April 1817 to £1084. 2s.—£6552:18: 4.” My Lords, I should have liked very much to have been present at this trial. I have often seen my worthy friend the First Lord Commissioner exceedingly puzzled when I had the honour of arguing questions with him at the Bar of this House. I have often puzzled him, and he has often puzzled me; but I think he must have been more puzzled when this case came before him than ever he was in his life before. How he could get on with such issues as these, I cannot conceive; it does appear to me to be one of the most distressing cases possible. My Lords, the Jury, however, found that the damages were £2000 sterling.
Then there was a motion for a new trial, and, upon this motion for a new trial, the Court of Session were pleased to be of opinion that too little damages had been given. They do not grant a new trial on grounds very common with us, namely excess of damages; but they
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With respect to the division of the damages, I have seen a circumstance of this kind, where a Jury has been told, on a new trial being granted, that they must find damages upon both issues $ and that is very easily arranged. They say, we gave £2000 damages—that is what we meant; and if it is necessary to divide that, we will give £1800 upon the first issue, and £200 upon the second, and that will set the matter right.
My Lords, I will not enter now upon a number of points that arise in this cause,—namely, whether the principles on which it has been found that persons making complaints in Courts of Justice, which they cannot sustain, are therefore to be held to be liable in damages, and whether those principles will apply to complaints against public officers in respect of their conduct. Without entering into that, and keeping in view', certainly, that in the trial of such an action as this, whether those principles do or do not apply, you must not only make out that the charge
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With respect to the charge of taking interest, that charge is made out; but it is the charge assigned as one ground for his dismissal, and as a sufficient ground for his dismissal, inserted in the letter written by Mr. Pearson. Then, if he is dismissed for that reason, how is it possible to say that there was malice in making that charge, or that there was no probable cause ? To take the other charge as to the double payments:—If you are to say that William Young and John Young made that charge maliciously; or if you please to put it so, that they made it both maliciously and without probable cause; is it possible to say that Pitcairn is a party to that charge, knowing it to be both malicious and without probable cause ? If, because it has been demonstrated that there was not double payment—if, because reasoning upon the proof which at length made out that fact, we are to take it for granted that William and John Young, who had to do with the account, knew from the beginning to the end that that was the fact, still how can we say that George Young and Pitcairn are liable in damages for that
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Again, my Lords, I wish to know upon what possible ground it could be stated to the Jury, that the advertisement was one cause they were to look at as a cause of damages, and to look at that advertisement as connected with his dismissal from office, which had taken place some years before. Some years had elapsed between his dismissal from office and that advertisement, without the slightest mention of any circumstance occurring in those years in which Pitcairn was a party;and yet Pitcairn is made jointly and severally liable for that transaction, as a transaction expressly stated to the Jury, as that for which he was jointly and severally liable.
Then, my Lords, according to our notions of proceedings, supposing there had been a trial in this country, and the Jury found them all jointly and severally liable, and the Court, at the trial, had been of opinion that they were jointly and severally liable, but, on a motion for a new trial, the Court had been of opinion that they were not all jointly and severally liable, though the Court might have conjectured that the Jury would have done right if it had given those damages against one or more of them, even to the amount of the very damages given, there must have been a new proceeding; because the Court never could have said that those damages were given for one of those causes, and not for all of those causes—that those damages were given, because one is answerable for them, and not because all are answerable for them; for it was for the Jury to determine which of them was liable, and when it was found out which of them was liable, to consider the damages they would give against whoever was liable, regard being had to the fact, that those individuals only were so liable. My Lords, I am not saying that Mr. Leven may not have a good cause of action; I neither affirm that he has, nor deny that he has cause of action against these individuals, or some of them. I have gone the length of saying, that he appears to me to have been a very respectable man; it is not for me to say (for the matter is not before me) whether he was or has not been ill used; but the question is, whether, for that ill usage, (if it has taken place,) this liability, joint and several, of all these persons can be sustained ? My Lords, I am very clearly of opinion that it would be going too far to support that proposition—that it is impossible to determine it in the affirmative,—and therefore I feel it my duty to state, (taking a few hours to consider in what way this judgment is to be pronounced,) that it is impossible to support this proceeding of the Court of Session. If Mr. Leven has received an injury, I am sorry he should not have his remedy; but I do think that such a proceeding as this cannot receive your Lord
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In the view that l take of the case, I conceive that it will be sufficient that your Lordships should find, “that none of the acts alleged by the respondent in his first and supplementary writs of summons of da mages to have been done by all, or some, or one of the appellants, the defenders in such actions, are so alleged or proven as to justify the finding that the first, second, and fourth articles of the principal and supplementary libels are relevant and proven, and that the whole defenders in both actions are conjunctly and severally liable to the pursuer in damages;” and therefore, that being a finding in the interlocutor, I think, of the month of February 1817, which must be the basis of all the subsequent proceedings, I should propose to your Lordships to find, “that the proceedings in the said actions are founded in error, and ought to be reversed, and on this ground to order and adjudge that all the interlocutors complained of in the said appeal be reversed, and that the appellants, the defenders in such actions, be assoilzied in such actions,” and that we do not mean to decide upon the other grounds on which the appeal has been brought to the House; and, with a view of avoiding misapprehension hereafter, to add, “their Lordships not meaning thereby to determine any question with respect to any particular ground of appeal alleged by the appellants, as applicable to any of, the several interlocutors complained of,” but reversing the whole proceedings upon the ground thus stated.
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Appellants' Authorities.—(1.)—4. Ersk. 4. 80; 2. Fount. 477; Warren. Nov. 19. 1771, (13933); 2. Esp. p. 10; 1. Sand. 131; 3. Esp. 33; Buller's N. P. p. 14; 1. Camp. 206.
Respondent's Authority.—(1.)—Thomson, May 16. 1810, (F. C.)
Solicitors: J. Campbell,— Spottiswoode and Robertson,—Solicitors.
(Ap. Ca. No. 28.)