James Stuart, Superintendent of Police, Thomas Crighton, some time one of the Judges of Police, and John Thomson, clerk to the Police Commissioners, Edinburgh - Attorney General (Campbell - Lord Advocate (Jeffrey) v. William Kelly, Tailor, Edinburgh . Murra - Milne [1834] UKHL 7_WS_343

UKHL
James Stuart, Superintendent of Police, Thomas Crighton, some time one of the Judges of Police, and John Thomson, clerk to the Police Commissioners, Edinburgh - Attorney General (Campbell - Lord Advocate (Jeffrey) v. William Kelly, Tailor, Edinburgh . Murra - Milne
[1834] UKHL 7_WS_343 · 1834-05-16
James Stuart , Superintendent of Police, Thomas Crighton , some time one of the Judges of Police, and John Thomson , clerk to the Police Commissioners, Edinburgh, Appellants.—Attorney General (Campbell)—Lord Advocate (Jeffrey) v. William Kelly , Tailor, Edinburgh, Respondent. Murray—Milne

[ 16th May 1834 .]

Lord Fullerton .

Subject_ Reparation. —

By statute 3 Geo. IV. c. 78. s. 134. (Edinburgh Police Act) it is provided, that “no action shall be commenced against the Judges, &c. for any thing done in the execution of this act, in any case, unless wilful corruption or oppression, or culpable negligence, out of which real injury has arisen, be charged.” In a summons of damages against a Judge of the Police Court, and others, on account of proceedings in the Police Court, issuing in the imprisonment of the pursuer, he averred that they were incompetent, malicious, wilfully oppressive, and unwarrantable; and in the condescendence he stated facts which amounted to a charge of wilful corruption and oppression, out of which real injury arose: Held (affirming the judgment of the Court of Session), that the summons and condescendence were relevant, although the precise words of the statute were not used.Kelly raised an action before the Court of Session against the appellants, setting forth in the summons, “That on or about the 14th day of November last a petition and complaint to the acting judge in the

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“Edinburgh, 20th November 1829.—The complaint having been read over, the defender Michael Cannan having failed to appear, grants warrant to apprehend and bring him into court to be examined; continue the diet against the other defender. (Signed) C. Muirhead .”
That during the afternoon of the same day the pursuer was first apprised of the non-attendance of Cannan by the following petition and complaint, which was then served upon him:—fiscal of court, for the public interest, that William Kelly, tailor, south back of Canongate, by his bail bond in the books of this court, dated the 15th day of November 1829, bound himself as cautioner for Michael Cannan, broker, St. Mary's Wynd, under a penalty of 5 l . sterling, that he should appear at all diets of court, but which party failed to appear on the 16th day of November current, in the prosecution at the instance of the complainer against him. May it therefore please your honour to grant the necessary orders for levying the said penalty, and for imprisoning the said cautioner, in terms of the police act, 3 Geo. IV. cap. 78. § 115. According to justice, &c. (Signed) Jas. Stuart , superintendent.”
“Unto the honourable the judge acting in the police court for the city of Edinburgh, and liberties of the same, and adjoining territory over which the police act extends, humbly complains James Stuart, superintendent of police and procurator

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That on this complaint the following deliverance was made:—

“Edinburgh, 20th November 1829.— The judge appoints the before-named cautioner to be cited by constables of court to pay 5 l . sterling, the before-mentioned penalty, to the clerk of court, within twenty-four hours after such service, with certification. (Signed) C. Muirhead .”
That in order to protect himself against the forfeiture of his bond, the pursuer, instantly on receiving this notice, attended at the police office, and in consequence of his exertions and assistance, certain of the police officers succeeded in apprehending and bringing him to the police office about eight o'clock of the same evening: That on the next day the following sentence was pronounced in the complaint against Cannan and his wife:—the defender Michael Cannan in ten pounds sterling, and ordains him to find caution for his good behaviour for twelve months, under the penalty of 20 l .sterling, and failing his obtempering this sentence, to be confined in the tolbooth of Edinburgh for a period not exceeding sixty days; and adjudges Mary Cannan to be confined eight days in the tolbooth of Edinburgh, and thereafter ordains her to find caution for her good behaviour for twelve months, under the penalty of 10 l . sterling; and failing her finding such caution, to be confined eight days longer. (Signed) C. Muirhead .”
“Edinburgh, 21st November 1829.— The judge finds this complaint proved against the defenders by the witnesses before named and designed, and therefore fines and amerciates

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That notwithstanding that the pursuer had thus implemented his bond by the presentment of the said Michael Cannan in the course of the same day to which the complaint against him was adjourned, and on which his conviction had followed, the proceedings against the pursuer were not abandoned; for three days after Cannan's conviction the following minute, under the hands of John Thomson, clerk to the commissioners of police, appears on the police records:—
“Edinburgh, 24th November 1829.—The clerk of court certifies that the above-named cautioner has not made payment in terms of the preceding order. (Signed) John Thomson , clerk.”
Upon which the following interlocutor was pronounced by Thomas Crighton, rectifier of spirits, Edinburgh, the acting judge of the police court:—

under certification of poinding and imprisonment. (Signed) Thos. Crighton .”

“Edinburgh, 24th November 1829.—The judge declares the above-mentioned penalty of 5 l . sterling to be forfeited, and grants warrant to officers of court to charge the above-named cautioner to make payment thereof to the clerk of court within ten days after the charge,

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That thereafter there appears the following minute on record, under the hands of the said John Thomson, as clerk foresaid:—
“Edinburgh, 9th December 1829.—The clerk of court certifies that the above-named cautioner has not made payment in terms of the preceding order. (Signed) John Thomson , clerk.”
And thereupon the following deliverance by the said Thomas Crighton, as judge foresaid, was made:—
“Edinburgh, 9th December 1829.—The judge grants warrant to officers of court to levy the penalty of 5 l . sterling before mentioned, and also the expense of poinding and sale, by immediate poinding and sale of the goods and effects of the said cautioner. (Signed) Thos. Crighton .”
That the officer employed to execute this poinding having returned an execution that there was not sufficiency of goods whereon to levy the penalty and expenses of poinding and sale, the following sentence was then pronounced:—
“Edinburgh, 11th December 1829.—The judge grants warrant to constables of court to incarcerate the before named and designed William Kelly, cautioner, in the tolbooth of Edinburgh; the keepers whereof are hereby ordered to receive and detain him for fifteen days from this date, if he is immediately apprehended, or if otherwise, from the date of his incarceration. (Signed) Thos. Crighton .”
That by the act 3 Geo. IV. cap. 78. sec. 116. it is provided, “that a record shall be preserved of the charge, and of the judgment” pronounced by the police magistrates, but no such record was kept or preserved in the pursuer's case: That on the foresaid warrant the pursuer

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Defences were lodged by the appellants; but although they objected that the summons was defective, in so far as it did not charge what it complains of as having been done without probable cause, yet no objection was made to its relevancy in other respects, and this objection was of consent repelled.In his revised condescendence the respondent repeated the detail of the proceedings alleged in the summons; but he did not in words state that they were, as alleged

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In his pleas in law he pleaded that “the whole proceedings against the pursuer were grossly irregular, incompetent, illegal, and oppressive.”The appellants, in their pleas in law, objected that the action is excluded by the 134th section of the act 3 Geo. IV. cap. 78.” *By this section it is provided “that no action shall be commenced against the judges, commissioners, superintendent, or any other person or persons, for any thing done in the execution of this act, in any case, unless wilful corruption or oppression, or culpable negligence out of which real injury has arisen, be charged; nor in any event shall such action be competent after three calendar months from the time the fact is committed; and the defenders

Footnote

* The Edinburgh Police Act.

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The Lord Ordinary, on 20th December 1832, pronounced this interlocutor:—

“Finds, that the re-revised condescendence for the pursuer, on which the record on his part is now closed, does not contain any of those special allegations against the defenders, of which one or other is, by the 134th section of the 3d of Geo. IV. cap. 78., declared to be indispensable to the support of any action against judges, commissioners, superintendents, or any other person or persons, for any thing done in the execution of the said act; and therefore dismisses the action, assoilzies the defenders, and decerns: Finds the defenders entitled to expenses,” &c.
The respondent reclaimed to the First Division of the Court, who pronounced the following interlocutor:
“—(22d January 1833.) The Lords having heard counsel, and advised the cause, Find, that the statements in the summons, taken along with these in the condescendence, are sufficient to support the action as relevantly laid under the statute; therefore alter the interlocutor of the Lord Ordinary reclaimed against, repel the preliminary defence, and remit to the Lord Ordinary to proceed with the cause: Find the pursuer entitled to expenses,” &c. *

Footnote

* 11 S. & D., p. 287.

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The superintendent, the judge, and the commissioners of police appealed.Appellants .—1. The appellants are public functionaries, upon whom the performance of very important public duties is imposed by the police statutes for the city of Edinburgh; and while they admit that they ought not to be altogether free from personal responsibility in the discharge of these duties, it is manifest that the useful and practical administration of the police of a great metropolis requires that those to whose management it is committed shall be protected against frivolous and vexatious complaints, and that the right of action against them for any thing done in their official capacity, shall be limited. This principle, which exists at common law in regard to magistrates and other inferior judges, has been invariably recognized in police legislation.Accordingly, the 134th section of the Edinburgh Police Act provides that no action shall be commenced, or, in other words, shall be sustained as relevant against parties in the situation of the appellants, for any thing done in the execution of the statute, in any case, unless wilful corruption or oppression or culpable negligence shall be charged. This is the first limitation of the right of action,—that it shall be laid expressly upon one or other or all of these three grounds. Then follows the farther and most important limitation, that the wrongful actings of parties under the statute must be charged as having caused real injury to the party complaining. The statute contemplates no case in which an action shall lie against the members of the police establishment for any thing done in the execution of the act, out of which real injury has not arisen. This

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If the appellants are right in their construction of the statute it is clear that neither the summons nor the rerevised condescendence contain statements “sufficient to support the action as relevantly laid under the statute.” It is not set forth in the summons that real injury has arisen to the respondent from the proceedings on the part of the appellants of which he complains; he merely libels, that these proceedings “have been grossly irregular, illegal, and wilfully oppressive, dictated by malice, or arising out of the most gross and culpable negligence.” But that which is introduced into the re-revised condescendence is incomparably weaker. There the respondent merely describes his treatment by the appellants as “cruel and injurious.” This is the statement to which he

Footnote

Nimmo v. Stuart , 17th July 1832, 10 S. & D., p. 844.

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2. But the Court below have held, that, in judging of the relevancy of the action, the statements in the summons are to be taken along with those in the rerevised condescendence; and the next question is, whether it be competent to supply any defect in the statement contained in the condescendence, upon which the record has been closed, by a reference to the narrative of the summons?According to the long established form of process in the Courts of Scotland, the purpose of a condescendence is to enable a pursuer to set forth with precision the whole facts pertinent to his cause of action, and of which he is willing to undertake a proof in support of the same. The condescendence cannot enlarge the grounds of action, as laid in the summons, but it may have and often has the effect of greatly narrowing them.This principle was recognized by the Court even prior to the statute 6th Geo. IV. cap 120., in the case of Forteith against the Earl of Fife. * The ground of action was laid upon judicial slander, and the summons expressly libelled malice. In the revised condescendence the pursuer did not aver malice, and issues were prepared accordingly. But the Court found, “in respect that malice upon the part of the defender is not expressly averred in the revised condescendence, the first four issues, as prepared by the jury clerk, are irrelevant to be tried by the jury.”

Footnote

* Forteith v. Earl of Fife , 18th Nov. 1820, Fac. Coll.

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This rule is now enforced by statutory enactment, because the late Judicature Act ordains that “in such condescendence and answers, or mutual condescendences, the parties shall in substantive propositions, and under the distinct heads or articles, set forth all facts and circumstances pertinent to the cause of action, or to the defence, and which they respectively allege and offer to prove.” It is manifest, therefore, that wherever a condescendence becomes necessary the statute imperatively requires that a pursuer shall state therein the whole facts pertinent to his cause of action, and of which he is prepared to undertake a proof. The statement must be complete in itself, and relevant, without reference to the narrative of the summons to support the action. And so the Court below, with the single exception of the present case, have uniformly interpreted the statute. *Respondent .—1. In construing the section founded on, it is clear that an action would be competent wherein the pursuer libelled either “wilful corruption” by itself, or “oppression” by itself, or “culpable negligence followed by real injury.” Any one of these charges might separately form a ground of action against individuals officiating under the act. It is also obvious that the quality of real injury attaches only to the last of these separate grounds of action with which it is coupled in the construction of the sentence; for it is natural to suppose that the legislature could never intend to encourage actions of damages against magistrates for

Footnote

* Act of Sederunt, 11th July 1828; Ross v. Hutton and Henderson , 15th June 1830, 8 S. & D., p.918.

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Now, in the summons it is expressly stated, “that the whole of these proceedings against the pursuer, and more especially those subsequent to the date of the presentment of the said Michael Cannan, have been grossly irregular, illegal, and wilfully oppressive, dictated by malice, or arising out of the most gross and culpable negligence, inasmuch as, 1st,” &c. Then are set forth the reasons on which the respondent maintained that these proceedings showed wilful oppression as well as culpable negligence. The summons next proceeds:—
“That for these said irregular, illegal, malicious, and wilfully oppressive proceedings, consequent imprisonment, and the consequent injury sustained by the pursuer therethrough in his health, character, and feelings, and also in his means of livelihood, the said James Stuart, as prosecutor thereof, the said Thomas Crighton, the judge by whose decision the pursuer's bond was declared forfeited, and the warrant for his imprisonment granted,—as also the commissioners of police of Edinburgh, as responsible for the regularity of the proceedings of their officers, &c.,—are allconjunctly or severally liable in damages, and a solatium to the pursuer;”

and he afterwards

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Then the facts and circumstances detailed in the rerevised condescendence, when taken together, support, and, if proved, will establish, the charges of oppression and culpable negligence, followed by the real injury libelled in the summons. In the 17th article of the re-revised condescendence the respondent explains the manner in which he sustained injury in his health by confinement for fifteen days in the cell of the felons gaol, where he was deprived of all comfort and proper sustenance; and in the 18th article he averred, “that before the pursuer's confinement, as above stated, he was enabled, by means of his earnings in trade, to support his wife and a family of three children; but in consequence of his confinement, and of the said injury to his health, he lost his employment, and was for many months deprived of all means of support; and, in addition to his loss of health, he also suffered in his character and feelings from the above cruel and injurious treatment.”It was not necessary to wind up the narrative of these special facts given in the condescendence with an inference or a repetition of the statement in the summons, that these facts made out a case of oppression; but, if it was so, this was done in the plea in law, where it was maintained, as a legal inference from the facts specially condescended on, that “the whole proceedings against the pursuer were grossly irregular, incompetent, illegal, and oppressive.”

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But further, the appellants, not having, in the proceedings complained of, observed the provisions of the Edinburgh police statute, and, on the contrary, having contravened and violated them, are not entitled to avail themselves of and plead the protection which that statute confers for any thing done “in the execution of the act,” or “by authority and in virtue thereof.” * The respondent's allegation and plea is, that the whole proceedings adopted against him by the appellants were in direct violation of the statute which they refer to for protection,—but which protection is only conferred for what is done “in the execution” or “by authority” of the act; so that even though it could otherwise be maintained, that the summons and condescendence do not relevantly set forth and make out the charges of oppression and culpable negligence required by the statute, the appellants cannot competently insist upon the respondent stating or proving these charges at all, in consequence of their contravention of the act.2. The object of a condescendence is to set forth facts in support of a summons, and not to embody grounds of action or statutory words. Accordingly, the Judicature Act provides, by section 8th, that “where the parties do not agree to hold the summons and defences as setting forth fully the facts and pleas respectively founded on, or where the Lord Ordinary shall think fit, he shall order the pursuer or defender,

Footnote

* Anderson v. Campbell , 28th Feb. 1811, Fac. Coll.; Shand v. Henderson , 17th June, 1814 Dow's Reports, vol. ii. p. 519.; Goldie v. Oswald , 1st June 1814, Dow's Reports, vol. ii. p. 534; Strachan v. Stoddart , 13th Nov. 1828, 7 S. & D., p. 4.; Richardson v. Williamson , 1st June 10 S., D., 1832, p. 607.

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The case of Forteith v. the Earl of Fife is inapplicable; because, although the pursuer in his summons libelled malice, he in his condescendence not only abandoned that charge, but ascribed the slander to a different cause. In this respect, therefore, the statements in the condescendence not only fell short of and did not bear out the allegations in the summons, but expressly contradicted them.Lord Chancellor .—My Lords, this case is one of considerable importance, not only to the parties themselves, but to the rules of pleading in the Court below. It is of great importance that the protection given by Acts of Parliament conferring powers upon public functionaries, which bring them constantly into contact and frequently into conflict with members of the community who are, generally speaking, persons of precarious subsistence and circumstances, and even residence, should be made substantially available to the functionary, who may be unjustly sued for a breach of duty. On the other hand, it is very material, that, under the guise of protecting those functionaries against unjust actions, the remedy of those parties who may be injured by their malversation in office and their abuse of power should not be too much harrowed. The course which the Legislature has adopted in the act now under consideration, for the purpose of giving such protection, is this:— It contains a provision which has been usually made in

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutor therein complained of be and the same is hereby affirmed: And it is further ordered, That the appellants do pay or cause to be paid to the said respondent the sum of 200 l . for his costs in respect of the said appeal.Solicitors: Richardson and Connell— Johnston and Farquhar, Solicitors.