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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rae v. Linton & The Bank of Scotland [1875] ScotLR 12_398 (20 March 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0398.html Cite as: [1875] ScotLR 12_398, [1875] SLR 12_398 |
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Page: 398↓
(Ante, p. 148.)
A party was imprisoned on a conviction before the Police Court, which was afterwards quashed by the High Court of Justiciary on the ground that no crime had been libelled. In an action of damages at his instance against the Procurator-Fiscal and the party on whose information he was apprehended,— held that he must take an issue of malice and want of probable cause.
This case came up on a notice of motion by the pursuer to vary issues, in an action at his instance against Thomas Linton, Procurator-Fiscal of the Police-court of Edinburgh, and also against the Bank of Scotland. The pursuer was convicted in the Police-court in August last of having wickedly and feloniously obtained money under false pretences, and sentenced to 20 days' imprisonment. This conviction was subsequently quashed by the High Court of Justiciary, on the ground that no crime had been libelled. (See Rae v. Linton, ante, p. 148.) Rae now claimed damages in respect of his illegal apprehension and imprisonment. The following were the issues as adjusted by the Lord Ordinary ( Craighill):—(1) Whether the defenders, the said Governor and Company of the Bank of Scotland, on or about the 7th day of August 1874, maliciously, and without probable cause, caused the pursuer to be apprehended, and thereafter to be tried in the Police-court of the city of Edinburgh, and convicted of the crime of falsehood, fraud, and wilful imposition, and subsequently to be imprisoned in the prison of Edinburgh for twenty days, to the loss, injury, and damage of the pursuer. Damages laid at £2000. (2) Whether on or about the 7th day of August 1874, the defender, the said Thomas Linton, maliciously, and without probable cause, caused the pursuer to be apprehended, and thereafter to be tried and convicted in the Police-court of the city of Edinburgh for the crime of falsehood, fraud, and wilful imposition, and subsequently to be imprisoned in the prison of Edinburgh for twenty days, to the loss, injury, and damage of the pursuer? Damages laid at £2000.” The pursuer now moved the Second Division to vary the issues
Page: 399↓
so adjusted by deleting the words “maliciously and without probable cause” from each issue, and inserting in their stead the word “wrongously.” The defender Linton pleaded 27 and 28 Vict. c. 53, sec. 30. which provides that no Procurator-Fiscal, or other party prosecuting for the public interest, by complaint under that or any other Act, shall be liable to pay a greater sum than £5 as damages for any proceedings taken or anything done on such complaint, or on any judgment following on such complaint, “unless the person prosecuting for damages shall aver and prove that such proceedings were taken or done maliciously and without probable cause.”
Authorities cited:— Arbuckle, 3 Dow, 160; Hollands, 5 D., 1352; Strachan, 7 D., 399; Barclay, 16 D. 714; Mains, 23 D., 1258; Bell, 3 Macph., 1026.
At advising—
The other Judges concurred.
The Court refused the motion.
Counsel for the Pursuer— Dean of Faculty (Clark) and M'Kechnie. Agent— W. S. Stuart, S.S.C.
Counsel for Thomas Linton— M'Laren. Agents— Richardson & Johnston, W.S.
Counsel for the Bank of Scotland— Macdonald. Agents— Tods, Murray, & Jamieson, W.S.