Scottish Court of Session Decisions

By 3 G. IV. c. 78, one of the police acts of the city of Edinburgh, it was enacted, as to the General Commissioners of Police, § 23, “that it shall be their duty, &c. to assess, &c. the sums of money hereinafter authorized for the purposes of this act; to appoint collectors, clerks, surveyors, and all other persons employed in the execution of this act, as to whom the power of appointment is not rested elsewhere, and to remove them at pleasure; to fix the number of lieutenants, sergeants, watchmen, scavengers, and other inferior officers to be employed, and the wages to be paid to them, and to increase or diminish their numbers from time to time as they shall see cause; to make orders and regulations, relative to the lighting, cleansing, guarding, watching, and patrolling the streets, &c.”—§ 56, that the funds raised by the Commissioners, should be “applied and laid out, in defraying the expenses of the police establishment in its various branches, according to the annual estimate, required, as before specified, and for the other purposes contained in this act, and for no other purposes whatever.”—§ 59. “That it shall and may be lawful to the Lord Provost of the city of Edinburgh, and his Majesty's Sheriff-Depute of the county of Edinburgh, and they are hereby empowered and required to nominate and appoint a fit person to be superintendant of police; and in the event of their differing as to such appointment, his Majesty's Advocate for the time being shall decide, and the said Lord Provost and Sheriff-Depute shall have full power and authority at all times to remove such superintendant at their pleasure.”—§ 60. Power was given to five persons specified (not Commissioners) on the requisition of the General Commissioners, to dismiss the superintendant if they saw cause. $ 64. The General Commissioners were appointed to fix the salary of the superintendant.—§ 65. “And whereas it is expedient that the superintendant of police so to be appointed, shall, as far as possible, be made answerable for the conduct of the watchmen, and other officers of the department acting under his orders; be it enacted, that as often as the said General Commissioners shall fix the number of lieutenants, sergeants, watchmen, and other inferior officers of police they shall judge necessary for guarding, patrolling, and watching within the limits of this act, and to direct their distribution among the different wards, it shall and may be lawful to the said superintendant, and he is hereby authorized and empowered to appoint proper persons for the above duty, to direct their distribution within the different wards, and to remove them at pleasure; and the said superintendant, lieutenants, sergeants, watchmen, and other inferior officers appointed by the said superintendant, shall have and exercise all the powers belonging to constables by the law of Scotland.”—§ 66. “It shall be the duty of the said superintendant of police, and of the officers of the watching department to be appointed by him, to guard, patrole, and watch the streets, ways, and passages within the bounds of police herein-before described, according to regulations to be prescribed by the said superintendant of police, under the control of the said General Commissioners, and to apprehend and bring before the magistrates, &c. all persons who may be found within the said bounds, actually committing any criminal, riotous, or disorderly act, or accused or suspected of having committed any such act, &c.” The superintendant was also enjoined to carry into effect the regulations, laid down by the General Commissioners, “for the proper guarding, patrolling, and watching the streets, &c.”—§ 107. Provided that the Sheriff-Depute, or Substitute, or any of the Magistrates of Edinburgh, might punish or dismiss watchmen, whenever it appeared proper to do so.—§ 134. That “no action shall be commenced against the Judges, Commissioners, Superintendant, 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.”

By subsequent statutes, particularly 7 G. IV. c. 115; and 2 W. IV. c. 87; many of the provisions of the above statute were altered. But, in other respects, the above statute was re-enacted, and it was kept in force, in reference to the provisions above quoted. By 2 W. IV. c. 87, § 18, which slightly modified a provision of 3 G. IV. c. 78, § 30, it was provided “that the said General Commissioners may sue or be sued for any thing done, or ordered by them, in virtue of this act, and for recovery of the penalties and forfeitures before-mentioned, in the name of their clerk, collector, or treasurer for the time being; and no action or suit wherein the said Commissioners shall be concerned as pursuers or defenders, in the name of their clerk, collector, or treasurer, by virtue of this act, shall cease or abate by the death or removal of any such clerk, collector, or treasurer, but the clerk, collector, or treasurer, to the said Commissioners, shall be deemed to be the pursuer or defender, as the case may be, in every such action.”

James Mitchell, gardener, Edinburgh, raised an action of damages, libelling that on the evening of 30th November, 1836, as he was going peaceably homewards, through the streets of Edinburgh, along with his wife, and John Henderson, herb-distiller, Edinburgh, he fell, the streets being slippery from frost: that Erick Mackay, or some other of the night watchmen, came up to him, and, falsely alleging that he had been fighting, insisted on taking him to the nearest watch-house: that the pursuer refused, and Mackay called up four other night watchmen, who seized the pursuer and his companions, two of them collaring the pursuer, who assured them that he was merely going peaceably home, and refused to go to the watch-house: “that, thereupon the said Erick Mackay, or one or other of the five policemen in whose custody he now was, and whose name, as distinguished from the rest, is to the pursuer unknown,—did with his baton strike the pursuer with all his might across the legs; the pursuer at once felt that by the stroke thus inflicted upon him his right leg had been broken; he was now taken to the Rose Street watch-house, and put into an apartment of the same, as was also the said John Henderson, and they were desired to fight it out there: that the pursuer now entreated that a surgeon might be sent for, but he was told he would get one at the head office, whither he was accordingly carried, when Dr Black having reported that the right leg was broken at the knee, the pursuer was on the following day carried to the Surgical Hospital, which is attached to the Royal Infirmary: that the bodily injury sustained by the pursuer by the blow inflicted as aforesaid, was a transverse fracture of the pan of the knee of his right leg, in consequence of which he has been ever since, and still is, under surgical treatment, and it is not likely that he will ever be able again to prosecute the calling of a gardener to which he was bred, and upon which the subsistence of himself and his family, consisting of a wife and five children, entirely depended: that for the grossly illegal, oppressive, and cruel and tyrannical conduct towards the pursuer above set forth, being wilful and causeless cruelty, and a brutal and unprovoked outrage, and the serious injury and damage done to him thereby, not only in his person and bodily health and constitution, but in his patrimonial interests and the comfortable subsistence of himself and family, both bygone and in time to come, not only the said Erick Mackay, or other officer of the said police establishment, who inflicted the brutal stroke aforesaid, but also the superintendant of the said police, and the commissioners of police of the city of Edinburgh, as answerable for the conduct and proceedings of their officers, are all conjunctly and severally, or severally liable: that by the 18th section of the police act of the said city of Edinburgh, passed in the second year of our reign, chap. 87, entituled ‘An act for altering and amending certain acts for regulating the police of the city of Edinburgh and the adjoinig districts, and for other purposes relating thereto,’ it is enacted that the said General Commissioners may sue or be sued in name of their clerk, collector, or treasurer, for the time being: that James Stuart is present superintendant, and John Thomson is present clerk of the said police establishment: and although the pursuer has often desired and required the said Erick Mac-kay, as also the said James Stuart and John Thomson, defenders on behalf of, and as representing the said Commissioners of the Edinburgh Police Establishment, conjunctly and severally, or severally, to make reparation to the pursuer in the premises; yet they refuse, at least delay so to do: therefore, the said defenders ought and should be decerned and ordained by decree of the Lords of our Council and Session, conjunctly and severally, or severally, to make payment to the pursuer of the sum of £1000 sterling, in name of damages, and as a solatium to the pursuer for the injuries sustained, and still to be sustained by him, through the illegal, oppressive, wilfully tyrannical and cruel treatment, and the brutal outrage inflicted upon him in manner before specified.”

Defences were lodged by Mackay, alleging, on the merits, that all the statements imputing misconduct to him, were false, and also that the allegations, as against him individually, were too vaguely laid to be relevant.

Defences were separately pleaded by James Stuart, the superintendant of police, and John Thomson, clerk to the Commissioners of Police.

The first defence of Stuart was that no personal conclusion was maintained against him: that the summons merely set forth the fact of his being superintendant of the police establishment, “and although the pursuer has often desired and required the said Erick Mackay, as also the said James Stuart and John Thomson, defenders on behalf of, and as representing the said Commissioners of the Edinburgh Police Establishment, conjunctly or severally, or severally, to make reparation to the pursuer in the premises; yet they refuse, at least delay so to do: therefore, the said defenders ought and should be decerned, &c.” Stuart was thus called merely “on behalf of, and as representing the said Commissioners.” But he had neither the right nor the liability of representing the Commissioners, and ought therefore to be assoilzied.

The Commissioners, through Thomson, pleaded as their first defence, that it was only under the 18th section of the Police Act, that they could be called through their clerk, and accordingly that that section had been specially libelled on. But, by that section, the grounds of action were expressly limited to “any thing done, or ordered by them, in virtue of this act.” Even assuming the whole statements in the libel to be true, yet nothing there alleged was either “done, or ordered” by the Commissioners; and, therefore, whatever remedy the pursuer might have against the Commissioners, in some other shape, he could not bring an action against them in the present form by calling their clerk and libelling on § 18 of the Police Act.

In support of this defence the Commissioners referred to the provisions of the Police Acts above quoted, under which they had neither the power of appointing, or dismissing, watchmen, and pleaded that they ought therefore not to be made responsible for the conduct of watchmen. And they also alleged that they had no power of raising funds which could be applied in payment of damages, for a watchman's misconduct, if any such were awarded.

The pursuer, in answer to the first defence of Stuart, proposed to amend the libel by striking off the letter “s” from the word “defenders” as occurring in this line of the libel, “the said James Stuart and John Thomson, defenders, on behalf of” the Commissioners. The effect of this amendment, he contended, would be, that while Thomson alone would be called as “defender on behalf of” the Commissioners, Stuart would remain called as Superintendant of the Police establishment. And as he had the power of appointing and dismissing watchmen, and was intended by the police acts to be made answerable for them, he ought not lightly to be allowed to escape from such an action as this.

Stuart answered, that, independently of other objections, the proposed amendment was incompetent by 3 Geo. IV. c. 78, § 134, because more than three calendar months had elapsed since the date of the acts complained of; and, unless an apt summons was framed against him within that time, the right of complaining was prescribed.

In regard to the first defence of the Commissioners, the pursuer pleaded, that, by 3 Geo. IV. c. 78, § 134, the actions which were cut off against Commissioners were those raised “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.” From this it followed that any action which charged oppression, &c, was competent, so far as regarded the subject of it; and as the present action libelled a brutal personal outrage, amounting to oppression, it was relevant, as to its subject matter. And the Commissioners were proper defenders in such action, because the outrage alleged was committed “in the execution of this act;” not certainly in the rightful execution of it, as neither wilful corruption, nor oppression, &c, could possibly be committed, in the rightful execution of it. But the outrage was committed in the wrongful execution of the act; as it was committed by a watchman, while in the discharge of his office, patrolling in his allotted district, and acting as a servant on the Police establishment. Whether the Commissioners were justly liable for the conduct of the watchmen, was a question not involved in the first defence pleaded by-the Commissioners, as that defence merely related to the competency of calling them through their clerk. But, at the proper season, the pursuer would prove their liability, because, although they could not appoint or dismiss the watchmen, still they had the general control and regulation of the Police establishment, fixing the number of watchmen, and the amount of their wages, besides laying down regulations, under the control of which the Superintendant, who appointed and dismissed the watchmen, acted. In the mean-time, it was competent to call the Commissioners through their clerk, unless that mode of citation, being applicable to things “done or ordered by the Commissioners in virtue of this act” was held limited to things lawfully done. But if the words were so read, the power of citation would be absolutely nugatory, as it would never be competent except where no liability had been incurred by the Commissioners. The true meaning of the words was to render the Commissioners liable to this mode of citation, wherever a relevant case of wrong was alleged to have been committed in carrying the purposes of the act into execution, either by the Commissioners, or by parties for whom they were responsible.

The Lord Ordinary pronounced this interlocutor:—“Having heard Parties' procurators, and considered the summons and defences,—sustains the first defence of the defender, James Stuart, and also sustains the first defence for the Commissioners of Police: Finds that both of these defences are preliminary, and exclusive of the summons as now laid; and therefore, in regard to those parties, dismisses the action, and decerns: Finds them entitled to their expenses, and allows an account thereof to be given in, and to be taxed by the auditor: And in regard to the defender, Mackay, appoints the cause to be enrolled, that parties may be heard on its farther preparation.” ^*

_________________ Footnote _________________

^* Note.—“The Lord Ordinary gives no opinion on the question, how far it is incompetent in any circumstances, and under any form of action, to render the Commissioners of Police, as the administrators of the funds levied for the protection of the inhabitants, answerable for the misconduct of the watchmen, or other subordinate officers. The only point here, properly preliminary, is, whether or not the present summons can be sustained as legitimately raising the question of liability, and he is of opinion that it cannot. In so far as the Commissioners are concerned, it is rested on the 18th section of the Police Act, authorizing the General Commissioners ‘to sue, or be sued in name of their clerk, or collector, or treasurer, for the time being.’ And accordingly, John Thomson, the present clerk of the Police establishment, is called and concluded against, as representing the Commissioners, But the clause in the statute referred to, is expressly limited to the case of the Commissioners suing or being sued for any thing ‘done, or ordered by them, in virtue of this act.’ And the summons certainly sets forth nothing which falls under that description. Accordingly, at the debate, the case against the Commissioners appeared to be rested, not so much on the statute, as on the responsibility at common law, for the subordinate officers employed by, and paid out of the funds of the Police. It is evident, that in an action on that head, it would be requisite to give some much more distinct intimation of the nature and ground of that liability, than is to be found in the present summons. But, at all events, that ground of action is totally different from that of the acts libelled, being done or ordered by them ‘in virtue of the statute,’ which, as has been already mentioned, is the indispensable condition of the competency of any procedure against them through the medium of their clerk, collector, or treasurer.

“2dly, As to Stuart the Superintendant, the case is, if possible, clearer. He, it will be observed, is not called, or concluded against, personally, in the summons. He is called with the Commissioners of Police of the city of Edinburgh, ‘as answerable for their proceedings, and conduct of their officers;’ and ‘the said James Stuart and John Thomson’ are described as defenders, in behalf of, and as representing the said Commissioners of the Edinburgh Police establishment, conjunctly and severally, or severally,' &c. In short, it appears from the summons, as laid, that Stuart is called, like the defender, Thomson, only for the purpose of reaching the Commissioners as administrators of the Police funds. It is true, that at the debate, the pursuer proposed to amend the summons, by striking out the letter ‘s’ at the end of the word ‘defender,’ in the passage last quoted; by which amendment, it seemed to be thought it might be converted into a summons, personally concluding against Stuart, the Superintendant; but the Lord Ordinary does not think that such an amendment can be received. It is clear, from the whole structure of the summons, that it is not directed personally against Stuart. In that part of it which sets out his liability, he is joined with the Commissioners of Police of the city of Edinburgh, against whom no personal liability is alleged; and besides, there is not a single fact or ground in law set forth for holding the defender, the Superintendant of Police, personally liable for the misconduct of the watchmen,—a responsibility so novel and so extensive in its operation as to require some very distinct statement, indeed, of the grounds on which it is rested, so that even if the summons could be construed, as directed, personally against the Superintendant, it is defective in another essential particular, inasmuch as it does not, in compliance with the Judicature Act, set forth the grounds of the action in terms sufficiently positive and clear, so as relatively and legally to deduce the conclusions against the defender.”

The pursuer reclaimed.