Graham v Strathern
| Jurisdiction | Scotland |
| Judgment Date | 23 May 1924 |
| Docket Number | No. 72. |
| Date | 23 May 1924 |
| Court | Court of Session |
Lord Blackburn, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
Limitation of ActionsProtection of public officialsReparationClaim of damages against Procurator-fiscalAlleged wrongous apprehensionCharge of resetCharge brought to compel restoration of stolen goodsOblique motiveMaliceSummary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), sec. 59Whether charge a proceeding under the Act.
The Summary Jurisdiction (Scotland) Act, 1908, enacts by sec. 59, that no prosecutor in the public interest shall be liable to pay damages for any proceeding taken under the Act, unless the person suing shall have suffered imprisonment and the proceeding shall have been quashed, and unless he shall specifically aver that such proceeding was taken maliciously and without probable cause.
An action of damages was brought against a Procurator-fiscal, in which the pursuer, a bank teller, averred that the defender, knowing that he was not guilty of reset, had charged him, ostensibly under the Summary Jurisdiction (Scotland) Act, 1908, with reset of certain coins, which had been handed into the bank in the course of business, and for which notes had been bona fide given in exchange; and had obtained a warrant for his arrest upon that charge. The pursuer further averred that he had been detained in custody in the bank until the coins were handed over, and had then been immediately released. He averred that these proceedings were wholly illegal and without any statutory authority, being taken, not in order to prosecute him for the crime of reset, but solely to concuss him into surrendering the coins which the defender desired for the purpose of prosecuting the thief.
Held that the pursuer's averments at most instructed that the proceedings, which were ex facie regular and competent under the Summary Jurisdiction (Scotland) Act, 1908, had been taken maliciously by the defender; that in the circumstances the proceedings did not, on that account, cease to be proceedings under the Act of 1908; and that, as the pursuer had not suffered imprisonment and the proceedings against him had not been quashed, the action was excluded by sec. 59 of that Act.
M'Crone v. Sawers, (1835) 13 S. 443, and Bell v. BlackUNK, (1865) 3 Macph. 1026, distinguished.
On 29th June 1923 Andrew Walter Burton Graham, bank-teller, of the Hutchesontown Branch of the British Linen Bank, Glasgow, brought an action against John Drummond Strathern, Procurator-fiscal for the Lower Ward of the County of Lanark at Glasgow, concluding for payment of 1000 as damages alleged to have been sustained by the pursuer as a result of certain proceedings taken by the defender against him.
The pursuer averred, inter alia:(Cond. 2) The pursuer is thirty-six years of age, and has, for over twenty-one years, been in the service of the British Linen Bank at various branches in Scotland. He has been teller of the said bank's branch at Hutchesontown Branch, Gorbals, Glasgow, foresaid, for the last four years, and during his whole period of service he has earned the confidence and respect of the bank, and he is known to them as a man of the utmost probity. (Cond. 3) In or about the last week of April 1923, while the pursuer was attending at the counter of the said branch in accordance with his duty, a man came in and tendered to the pursuer six 5s. pieces, which were coin of the realm, and asked for notes in exchange. The pursuer in accordance with practice complied with the request, and handed him the equivalent amount in Treasury notes. The said sum of 30s. in silver was legal tender, which the pursuer was bound to accept as such. The pursuer, in the ordinary course of business, put the coins which he had received into the till. The coins, while of a relatively early date of issue, had no special value for purposes of collection. Such transactions are of daily occurrence. Both customers of the bank and strangers come in frequently during the course of the day and ask for paper money to be converted into silver, or vice versa. (Cond. 4) The said 5s. pieces, which had been placed in the till as aforesaid, were at the close of the day placed among the silver coinage which was made up into lots of 100 to await transmission to the chief office of the bank at Glasgow. Thereafter the pursuer, whose books had been duly balanced and found accurate, had no further concern with the matter. (Cond. 5) On or about 2nd May 1923 two men came to the said branch bank, and represented themselves to be detectives of the City of Glasgow Police. They were accompanied by a man who, they alleged, had stolen certain coins. They asked the pursuer if he remembered having received from the said man a number of 5s. pieces, and having given notes in exchange. The pursuer identified the man as having come into the branch bank a few days before, and having changed some silver for notes. The detectives, who were in plain clothes, and did not produce any warrant, demanded from the pursuer the silver coins which the said man had handed to him. The pursuer refused to comply with their request. He explained that the said silver coins had been immixed with the bank's money. In point of fact these coins had been made up with the customary 100 lots as beforementioned, and the pursuer at that time was not aware whether they had been transferred to the chief office or not. This he explained to the detectives. He also informed them as to the circumstances under which he had received the coins, and pointed out to them that they were the property of the bank, and that he could not part with them except upon the instructions of the bank. The said men thereupon interviewed the agent of the said branch, Mr Russell, who confirmed the view of the pursuer, and explained to them that the matter must await the instructions of the head office of the bank in Edinburgh. The men then withdrew from the said branch, one of them remarking that he would return next day. Mr Russell acquiesced, and stated that he hoped to have the instructions of the head office by that time. (Cond. 6) Mr Russell reported the matter to the said head office of the bank, and on the following day (3rd May 1923) instructions were received from the bank's head office to retain the coins pending consideration of the matter by them, and at the same time the head office officials requested further and fuller particulars. These instructions were communicated to the pursuer. (Cond. 7) On the same day upon which the said message was received, viz., the 3rd of May, a detective officer, who gave his name as Inspector Bowie, called again at the said branch bank whilst Mr Russell was absent on the business of the bank. This officer demanded the said coins from the pursuer, who replied that the bank was awaiting instructions from headquarters. He explained to the officer that he had received clear and peremptory instructions from his superior officer, viz., the bank-agent, to retain the coins pending further instructions. The detective then intimated to the pursuer that he would apply for a warrant, to which the pursuer demurred. The said detective then said to the pursuer, I will make it hot for you, my man. Inspector Bowie was informed that Mr Russell would soon return, but he declined to wait, and demanded the pursuer's name and address, with which he was duly furnished. Thereafter he took his departure. (Cond. 8) At 3 o'clock in the afternoon of the same day, which was the bank's closing hour, two detectives called at the said branch office and presented a sheriffs warrant of that date. They read the same over to the pursuer, and informed him that he was charged with resetting the said coins, and with failing to hand them over when asked to do so, and that he was under arrest upon said charge. Mr Russell, the bank-agent, intervened and persuaded one of the officers to accompany him to see the defender in regard to the matter. The other officer remained in charge of the pursuer, who was imprisoned in the bank's premises, and not allowed to depart therefrom. Explained that when delivery of the coins was first demanded by the detectives, and, in any event, from and after 3rd May 1923, the coins had passed out of the possession and custody of the pursuer, and were in the possession and custody of the bank, and that the pursuer had no power or authority to hand them over. (Cond. 9) Mr Russell, the bank-agent, late in the afternoon of said last-mentioned date, had an interview with the defender, and explained the whole circumstances to him. He explained, as was already well known to the authorities, that the pursuer had not possession of the said coins, and that the pursuer had throughout been acting in good faith and upon the instructions of his superior officers in the bank; and that there was no ground whatever for arresting and imprisoning the pursuer, and that the pursuer should be liberated. He also informed the defender that the coins would be handed over. Thereafter, the pursuer was liberated and allowed to proceed to his home. No further steps have been taken under the alleged warrant. The statements in answer, so far as not coinciding herewith, are denied, subject to the express admission that the warrant, which had been issued merely in terrorem, and in malversation of the powers vested in the defender, was withdrawn as soon as the defender ascertained that its purposes had been served. Explained that such a step could not have been taken by the defender without the gravest dereliction of duty on his part in any case in which he conceived that the crime of reset had been committed. (Cond. 10) The said proceedings taken by the defender against the pursuer were wholly illegal, and were without the authority of any law or statute whatsover. Moreover, the said proceedings were taken maliciously and without probable or any cause, and the detention or imprisonment of the pursuer in the bank's...
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