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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Petrie v Earl of Airlie [1834] CA 13_68 (21 November 1834) URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0068.html Cite as: [1834] CA 13_68 |
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Page: 68↓
Subject_Common Informer—Implied Condition—Personal Exception—
A reward of one hundred guineas was offered for such information as might lead to the detection of the author and printer of a placard which was described as false and scandalous, and as having appeared without any printer's name; the reward was to be paid on conviction: information was given, by which the author and printer were disclosed: no prosecution was instituted, and, accordingly, no conviction ensued,—held, that the reward was due to the informer.
In May 1831, a meeting of the Noblemen, Freeholders, Justices of the Peace, and Commissioners of Supply of Forfarshire was held, “for the purpose of taking into consideration the plan of Reform lately submitted to the House of Commons, and determining on the propriety of addressing both Houses of Parliament in regard to the same.” The Earl of Airlie, the Lord-lieutenant of the county, presided at the meeting. A motion was made, disapproving of the Reform Bill then pending, and an amendment was proposed approving of the bill. There were 24 votes for the motion, and 59 for the amendment. Lord Airlie was one of the minority. Shortly afterwards, a placard was posted up in several burghs in Forfarshire, which stated the names of the majority, and prefixed this title to them—“Majority in favour of the King, his Government, and his People.” It stated also the names of the minority, under this title—“Minority against the King, his Government, his People, and the Bill.” No printer's name was attached to the placard. The following proclamation was issued by Lord Airlie's direction:—“One hundred guineas reward. A most false and scandalous placard, headed ‘Reform,’ having appeared in several of the burghs of Forfarshire without any printer's name or date being attached to it, in which it is stated that the Lord-lieutenant, and thirteen Deputy-lieutenants of the county, voted at a county meeting, held at Forfar on the 16th ult., ‘against the King, his Government, and his People;’ and this placard having come to the knowledge of the Lord-lieutenant only this day, on his. return from Edinburgh to Cortachy Castle, a reward of one hundred guineas is hereby offered to any person who will give such information as may lead to the detection of the author and printer. The reward will be paid on conviction by the clerk of lieutenancy. By order of the Right Honourable the
Alexander Petrie, weaver in Arbroath, gave information that his brother, David Petrie, and one James Lindsay, printers in Arbroath, were the authors and printers of the placard. Lord Airlie communicated this information to the Lord Advocate and Solicitor-General, who declined to prosecute, as they considered that no indictable offence had been committed. The Lord Advocate at the same time, in a letter to Lord Airlie, reminded his Lordship that he himself had power to prosecute criminally, if so advised, or to sue for damages in the civil court. Lord Airlie refrained from prosecution. Alexander Petrie claimed the reward of a hundred guineas from Lord Airlie, who admitted that the true authors and printers had been disclosed, but considered that the reward was not due, as there had been no conviction. Petrie raised an action against his Lordship, before the Sheriff of Forfarshire, and pleaded,
1. The reward was offered unconditionally, for such information as should lead to the detection of the authors and printers of the placard. This information was confessedly given; and as neither prosecution nor conviction depended on the informer, he could not be deprived of his reward by the failure of others to prosecute and convict.
2. Even if conviction was to be held a condition of the offer of reward, the defender was barred from pleading this, because he had declined to prosecute, and thereby prevented all chance of a conviction. 1 He could at least have obtained a conviction under 39 Geo. III. c. 79, sec. 27, against the printers for not affixing their names; and, at any rate, after inducing; the informer to incur the odium, and it might have been also the expense, of coming forward with ample information, all which was done on the faith of the proclamation by his Lordship, which assumed the placard to be a fit subject for prosecution, his Lordship could not now be permitted to say that the placard was no fit subject for prosecution or conviction, and, consequently, that no reward was due to the informer.
The defender pleaded,
1. The reward was payable, not merely on the detection, but on the conviction of the authors and printers. There had been no conviction. 2
2. The defender was not barred from pleading this, as he had done all that was incumbent on him towards procuring a conviction. He had made the fullest use of Petrie's information towards this end, by transmitting it to the Lord Advocate and Solicitor-General, with a request that they should prosecute. They declined, and thus there was neither prosecution nor conviction. The fact that they declined, in consequence of considering that there was no indictable matter, only proved that the information given by Petrie was of no value whatever.
_________________ Footnote _________________
1 Hotham. 1 Term. Rep. 638.
2 Chitty on Criminal Law, 891, 284; 6 Geo. IV. c. 108, sec. 105; Alison's Pract. of Crim. Law, 493; 2 Hume, 364.
The Sheriff assoilzied the defender.
Petrie brought an advocation, in which the Lord Ordinary “advocated the cause, altered the interlocutor of the Sheriff, and decerned in terms of the libel; and found the advocator entitled to expenses both in this and in the Inferior Court.” *
_________________ Footnote _________________
* Note.—“In the notice issued by the respondent, it is stated that a false and scandalous placard had been put up without the printer's name or date being attached to it, and a reward of one hundred guineas is offered to any person who will give such information as may lead to the detection of the author or printer. So far the offer is unconditional; but it is added, that the reward will be paid on conviction. The advocator says that he gave the information required; his declaration was taken in writing by the clerk of the lieutenancy employed by the respondent for that purpose, and it is not disputed that it led to the detection of the author and printer of the placard.
“The advocator claims the reward, but be is met with the defence, that conviction has not taken place. He pleads, in answer, that the defence is barred personali exceptions, because the respondent has declined to prosecute; and having implemented his part of the agreement, the respondent is not entitled to withhold performance of the counterpart. This plea, at least to a certain extent, is well founded; for, if the respondent had chosen to prosecute, he might unquestionably have convicted the printer under the statute 39 Geo. III. cap. 79, sec. 27. With regard to the author, the point is not quite so clear. The Lord Advocate refused his instance, being of opinion that the offence was not indictable; but he reminded the respondent that the prosecution might proceed in his own name, with the concurrence, which is never refused. It is not certain, therefore, whether a conviction might not still be obtained. But assuming that it could not, if the respondent offered a reward for detecting the author, under a mistaken idea that the offence was indictable when it was not so, it is he and not the informer who is responsible for that mistake. If the time specified for payment of the reward, namely, the date of the conviction, is held to involve a condition, that condition cannot import more, than that the information given should be sufficient to satisfy the Court or Jury, as in a question of proof, to which alone it refers, and not as in a question of relevancy, with which it has no connexion. The respondent having obtained from the advocator all that he stipulated for, he is not entitled to evade payment of the price which he offered for it, because it does not answer the purpose which he had in view. If he meant to constiue the offer in the sense which he now does, he should have put the advocator on his guard, and not have allowed the disclosure to be made, which he knew, or ought to have known, would sever lead to a conviction. He had no right to extract information which would enable him to bring an action of damages for defamation, or at least to expose the parties implicated, and injure their character in public estimation, while he knew, or ought to have known, that the reward which he held out to the informer, and on the faith of which the information was communicated, never could become exigible. The case of the advocator is, in many respects, extremely unfavourable, but it is thought that the present defence is inconsistent with equity, and, if sustained, would introduce a dangerous precedent.”
The Court adhered.
Solicitors: J. Burness, S.S.C.— J. Yule, W. S.—Agents.
