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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Caird v. Innes [1866] ScotLR 2_95_1 (20 June 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0095_1.html Cite as: [1866] SLR 2_95_1, [1866] ScotLR 2_95_1 |
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Page: 95↓
JURY TRIAL.
(Before
In the trial of an action of damages for assault, held (per Lord Kinloch) that a judicial confession by the defender
Page: 96↓
in a criminal trial that he had committed the assault in question was competent evidence against him.
In this case James Caird, hotel keeper, Cullen, was pursuer; and Alexander Innes, Excise officer, Cullen, was defender; and the issue sent to trial was as follows:—
“Whether, on or about the 18th day of October 1865, and at a place on or near the turnpike road leading from Cullen to Portsoy, about 100 yards on the north side of the Cullen toll-bar, the defender assaulted the pursuer—to his loss, injury, and damage?
Damages laid at £500.”
At the trial,
Shand and Thomson for the pursuer proposed to put in evidence, for the admission which it contained, a conviction obtained against the defender on his own confession on 10th November 1865 when he was tried criminally for the assault in question before the Sheriff of Banffshire.
Clark and Lancaster for the defender objected to the competency of the proposed evidence. The conviction applied to the defender, but he had pleaded guilty as the quietest way of avoiding the publicity of a criminal trial. It had been decided that a prisoner's declaration could not be used against him as evidence in a civil case ( Little v. Smith, 9 D. 737). A conviction obtained after a trial on a plea of not guilty would not be admissible as evidence; and there is no real difference in the case of a conviction obtained on a person's confession.
The pursuer cited the following authorities in support of the admissibility of the evidence:—Taylor on Evidence, S. 1506; Starkie on Evidence, p. 362; Dickson on Evidence, S. 1085; Bell's Principles, S. 2216; Grierson, M. 14,021; Bontein, M. 14,043; Lord Arran, M. 14,023; Mackie, 3 Murray 25; Cairns, 12 D. 921; Ivory's Ersk., p. 986, note 95.
The jury found for the pursuer—damages, £40.
Solicitors: Agent for Pursuer— Alex. Morison, S.S.C.
Agents for Defender— H. & A. Inglis, W.S.