Pompa's Trustees v Edinburgh Magistrates
| Jurisdiction | Scotland |
| Judgment Date | 18 November 1941 |
| Docket Number | No. 13. |
| Date | 18 November 1941 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
ProcessInitial writAmendmentCompetencyLimitation of ActionsStatute providing for action against town clerk within time limitAction brought against magistratesProposal outwith time limit to amend by adding town clerkReparationRioting in burghDestruction of private propertyStatutory right to compensationRiotous Assemblies (Scotland) Act, 1822 (3 Geo. IV, cap. 33), secs. 10, 11 and 15.
The Riotous Assemblies (Scotland) Act, 1822, which alters and amends the Riot Act and the Seditious Meetings Act, 1817, enacts by sec. 10 that the compensation claimable under these Acts from the magistrates for damage to property in a burgh by rioting is now to be recovered in an action against the town clerk, brought (sec. 15) within one month after the damage is sustained, an assessment being made by the magistrates upon the ratepayers (sec. 11) for any compensation which may be awarded.
In an action in the Sheriff Court under sec. 10 of the Act of 1822 for damage to property through rioting, brought in error against the magistrates of Edinburgh instead of the town clerk, the pursuers sought to amend the crave of their writ, after the expiry of the time limit for bringing an action prescribed by sec. 15, by adding the town clerk as an additional defender; and, on their motion to amend being refused by the Sheriff-substitute, they appealed to the Court of Session.
Held that the liability to pay compensation, as introduced into Scotland by the Riot Act, and extended by subsequent legislation, was a liability imposed upon the community concerned, the character of which had not been affected by sec. 10 of the Riotous Assemblies (Scotland) Act, 1822, the primary purpose of that section being to provide a special method for enforcing that liability; that, while, as a general rule, no method for enforcing a statutory liability other than the statutory method was permissible, and while the Court would not permit substitution of the right defender for a wrong defender after expiry of a statutory time limit, here the action had been brought under the appropriate section, and all that was sought was the introduction of the proper representative of the real defenders. The Court accordingly allowed the pursuers to amend by substituting the town clerk for the defenders originally called.
On 9th July 1940, Alberto Pasquale Pompa and others, the trustees of the deceased Antonio Pompa, brought an action in the Sheriff Court at Edinburgh against the Lord Provost, Magistrates and Councillors of the City and Royal Burgh of Edinburgh in which they concluded for payment by the defenders of the sum of 1528, 9s. 2d.
They averred, inter alia:(Cond. 1) "The pursuers are confectioners, tobacconists and restaurateurs, having their places of business at 23 and 24 Crighton Place, Edinburgh, and at 113 Brunswick Street there, of which premises the pursuers are proprietors. The defenders are the Lord Provost, Magistrates and Councillors of the City and Royal Burgh of Edinburgh, and as such are responsible for the maintenance of law and order within the city. " (Cond. 2) "Consequent upon the entry of Italy into the war there occurred, on the night of 10th June 1940, anti-Italian demonstrations by a large number of persons, acting in concert, directed against properties within the City of Edinburgh belonging, or believed to belong, to Italian subjects, as a result of which the said property at 23 and 24 Crighton Place and 113 Brunswick Street was seriously damaged by the demonstrators. " (Cond. 3) "The said anti-Italian demonstrations were unlawful, riotous or tumultuous assemblies of persons within the meaning of section 10 of the Act 3 Geo. IV, chapter 33, and the defenders are liable in terms of said section to make good the loss or injury which has been sustained through such unlawful, riotous or tumultuous assembly. The defenders have refused to make good the said loss or injury, and the present action has been rendered necessary. " (Cond. 4) "As a result of the damage done to their said properties in consequence of the demonstrations directed against them as above mentioned, the pursuers have sustained serious loss, injury and damage. Serious damage was done to the premises at 23 and 24...
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