Scottish Court of Session Decisions

William M' Crone, sawyer at Balmannoch Printfield, in Dumbartonshire, raised a summons of damages against John Sawers, procurator-fiscal of Stirlingshire, setting forth, that Sawers had presented a petition to the Sheriff of Stirlingshire, charging him with a criminal offence committed in the island of Inchmirran, situated in Lochlomond, in Stirlingshire; that Sawers had thus obtained a warrant to apprehend M'Crone for examination; and, after getting it indorsed in Dumbartonshire, had apprehended him, and he had been carried to Stirling, examined there by the Sheriff, and committed to the tolbooth of Stirling, to be detained until he found caution, acted in the Sheriff Court books, to answer any action on account of the said crime; that he only obtained his liberty after finding bail; that the charge thus made against him was utterly unfounded, and “that the said John Sawers had no right, or title, or interest, as public prosecutor for the county of Stirling, to present the said application or petition; that the island of Inchmirran is not situate in the county of Stirling, but in the county of Dumbarton, where the Sheriff of Stirlingshire has no jurisdiction, and to which the official authority of the procurator-fiscal of Stirlingshire does not extend; that, nevertheless, the said John Sawers wrongfully, or at least without due caution, presented the said application or petition in relation to an offence charged to have been committed in a place which he knew, or by ordinary care and enquiry might have known, was not situate within the territory of the Sheriff of Stirlingshire, to which his own official duties as procurator-fiscal for Stirlingshire are limited.”

He farther set forth, that Sawers had executed the warrant of apprehension, “knowing it to be illegal, or least when he might and ought to have known that it was illegal,” and that the pursuer had eventually been tried in Dumbartonshire under a new process.

In defence, Sawers alleged, that a written information was lodged with him by Robert Henderson, writer in Stirling, agent for the Duke of Montrose, who was proprietor of the island of Inchmirran; that this information implicated M'Crone in the offence, and specified that Inchmirran, the locus delicti, was within Stirlingshire. He farther averred, that, by the general repute and belief of the district, the island was in Stirlingshire, and that, de facto, it was within that shire. Under these circumstances, he pleaded, that it was his duty to proceed precisely as he had done, on receiving the information, and that this was not only a defence on the merits, but a plea to bar farther prosecution. He stated as preliminary pleas—

“1. As the summons does not charge either malice or want of probable cause, or both of them, the action is not maintainable.

“2. The defender acted bona fide upon a signed information, lodged by the agent of the proprietor (the party best qualified to know the fact), that the alleged offence had been committed within the sheriffdom of Stirling.

“3. In point of fact, the island of Inchmirran is situated within the sheriffdom of Stirling.”

The Lord Ordinary “repelled the first preliminary defence; repelled the second plea as a preliminary defence, reserving its effect as a defence upon the merits; reserved the third defence, as it turns upon a point of fact; and remitted the cause, with the other defences upon the merits, to the jury-roll.” ^*

Sawers reclaimed.