McPhee v Macfarlane's Executor; Potter v Macfarlane's Executor
| Jurisdiction | Scotland |
| Judgment Date | 08 December 1932 |
| Docket Number | No. 18. |
| Date | 08 December 1932 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Reparation—Wrongous imprisonment—Liability of judge—Magistrate in Police Court—Imprisonment suffered under warrant alleged to be in excess of jurisdiction—Ultra Vires—Administration of Justice—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII. cap. 65), secs. 8, 9, 24, and 59.
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Sec. 8 of the Summary Jurisdiction (Scotland) Act, 1908, provides that, although certain courts of summary jurisdiction (including a police court) shall not have jurisdiction to try certain offences, including theft to an amount exceeding ten pounds, they may take cognisance of persons suspected of such offences; and sec. 9 enacts that "if … it shall appear that the offence charged is one which cannot competently be tried in the court," it shall be lawful for the Court to commit the accused to prison for examination for any period not exceeding four days, and shall forthwith give notice of such committal to the procurator-fiscal.
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Sec. 24 enacts that the Court may, in order to allow time for inquiry, continue the case for such reasonable time as may be necessary, not exceeding in all a period of seven days, or on special cause shown fourteen days; and contains a proviso that no judge shall allow bail in any case which he is not competent to try.
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Sec. 59 enacts that no judge shall be found liable in damages for any proceeding taken under the Act, unless the person suing has suffered imprisonment and such proceeding has been quashed, and unless the person suing shall specifically aver and prove that such proceeding was taken maliciously and without probable cause.
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In an action of damages against a magistrate, the pursuer averred that she had been apprehended and brought before the defender in the Police Court, upon a petition which set forth that she had been detained in respect of an alleged theft of £435, and that, in order to allow time for inquiry, warrant was required to detain her in custody for two days, and that the defender granted such warrant; that, on the expiry of the two days, she was again brought before the defender on a similar petition craving a further remand for another three days, and that the defender granted such remand. She further averred that she was innocent of the charge, which was afterwards abandoned. She did not aver that the defender had acted maliciously or without probable cause, but she maintained that his powers to commit her to prison in respect of a theft exceeding £10 were determined solely by sec. 9 of the Act of 1908, and that, having acted outwith his powers in committing her for more than four days, he was not protected by sec. 59. The defender maintained that he had acted under sec. 24, and accordingly was within his powers in committing her for five days, and, in any event, that he was protected by sec. 59 and also at common law, unless the pursuer averred malice or want of probable cause.
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Held that sec. 24 of the Act of 1908 applied to the proceedings, and that, under that section, the magistrate had power to commit the pursuer for the period in question; and actiondismissed as irrelevant.
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Held further that, while sec. 59 of the Act of 1908 might not in every case protect a magistrate who had acted ultra vires,it could not be said that a magistrate who merely misconstrued his powers under the Act of 1908 had thereby deprived himself of the protection afforded by sec. 59.
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M'Creadie v. Thomson, 1907 S. C. 1176, commented on and distinguished.
On 2nd February 1932 Elizabeth M'Phee brought an action in the Sheriff Court of Lanarkshire at Glasgow against James Macfarlane, a magistrate of the City of Glasgow, concluding for £100 in name of damages in respect of imprisonment suffered by the pursuer under a warrant granted by the defender, as magistrate, and alleged to be in excess of his powers.
The pursuer averred, inter alia:—(Cond. 2) "On 24th October 1931 the pursuer and a man named John Potter, both of whom had on the previous day been apprehended by the police and lodged in the Southern Police Office, were brought before the magistrate sitting in the Southern Police Court, Glasgow, upon a petition falsely bearing to be under the Summary Jurisdiction (Scotland) Acts, at the instance of James Finlay Langmuir, B.L., writer, Glasgow, Procurator-fiscal to the Police Court of the City and Royal Burgh of Glasgow, setting forth that the pursuer and the said John Potter had been detained in custody in respect of the alleged offence of having on 22nd or 23rd October 1931, in Saint Vincent Street, Glasgow, from the person of a man, stolen the sum of Four hundred and thirty-five pounds (£435) of money, and that it was requisite in order to allow time for inquiry that warrant should be granted to detain the pursuer and the said John Potter in custody in the Southern Police Office, Glasgow, till 26th October 1931 for inquiry, and craving the said Court to grant warrant accordingly, and on said 24th October 1931 the said Court granted warrant as craved, and the pursuer and the said John Potter were detained in terms thereof." (Cond. 3) "On 26th October 1931 the pursuer and the said John Potter were again brought before the said Police Court upon a similar petition alleging in like terms detention and necessity for detention for inquiry, stating that they had been before the Court on said 24th October 1931, and remanded till said 26th October, and that a further remand was 'necessary to enable the officer in charge of the case to complete his inquiries, and craving for warrant to detain the pursuer and the said John Potter further in custody and to commit them to Duke Street Prison, Glasgow, till 29th October 1931, for further inquiry. The defender, as magistrate foresaid, was presiding and acting in said Police Court." (Cond. 4) "At said last-mentioned diet of Court the pursuer and said John Potter, who were represented by a law agent, objected...
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...liability. Rather the individual office holder has been sued alone: eg Russell v Dickson 1997 SC 269; McPhee v Macfarlane’s Excrs 1933 SC 163; McCreadie v Thomson 1907 SC 1176. Where there has been any discussion of vicarious liability, it has either been conceded as inapplicable (Mazhar v ......
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