Scottish Court of Session Decisions

This is an action at the instance of James Pringle, millwright, near Newburgh, in the county of Fife, against J. F. Bremner, chief constable, and James Stirling, serjeant, in the Fifeshire constabulary. The grounds of action are two in number—(1st) That on 24th December 1864 the defenders came to the pursuer's house, stating that they had a warrant to search the same, which they accordingly did. They, it is alleged, also searched the pursuer's repositories, examined all his private books and papers, and seized and took away a number of the same. The pursuer says that they had no warrant for these proceedings. (2) That the pursuer was, on the same day, apprehended by the defenders, and lodged in the Police Office at Cupar; all without warrant. For these proceedings he sues the defenders for damages. In defence the defenders do not say that they had a warrant for the examination and seizure of the pursuer's papers, or for his apprehension; but that, holding a warrant to search his premises for other articles, they accidentally came upon a number of papers which seemed to them to throw light upon a matter which was then under investigation by the Procurators-Fiscal and police, and which was connected with the matter in regard to which they were making a search. They therefore thought it their duty to take possession of the documents, and to take the pursuer into custody, and take him to Cupar for examination before the Sheriff; which, however, in respect of the lateness of the hour, had to be delayed till the following day. It was not disputed by the pursuer that the after proceedings were regular and legal. But the pursuer says on record that the defenders did not accidentally come upon his papers in the course of their search for other articles, but that they in the beginning of their search proceeded to examine his books and papers.

The case was before the Court on Tuesday on a report by Lord Ormidale as to issues. The pursuer proposes to put two issues to a jury—1st, Whether this search for and seizure of his papers was wrongful and illegal? and 2d, Whether his apprehension and incarceration were wrongful and illegal?

The pursuer has no allegation that the actings of the defenders were malicious and without probable cause, and he contended that he was not bound to allege this, in respect this case was a fortiori of Bell v. Black and Morrison ( 37 Jurist, 257 and 543), when such a search as had been here made was pronounced illegal, though done by warrant of a sheriff, and in which it had been decided that it was enough to put in issue that it was wrongous and illegal. With regard to the apprehension, the pursuer was law-biding, and was apprehended without warrant in reference to occurrences which had happened a considerable time before. The pursuer referred to Dunbar v. Stoddart, 11 D. 587, to show that where a case of privilege was not admitted by him on record he was entitled to get to a jury without putting malice and want of probable cause in issue, leaving this to be ruled upon the trial.

The defenders contended that a case of privilege was raised by the admissions on record. This was not like the case of Bell. Here the officers were lawfully in the pursuer's premises making a legal search, and had they not seized the papers they found the evidence would have been lost. The pursuer had been afterwards committed for trial upon a charge of sending a threatening letter. The defenders were entitled to apprehend the pursuer in the circumstances without warrant.

The Court to-day, considering that it was important to know the way in which the search for papers had been begun and executed—parties being at issue thereupon—and the record not supplying the information required, before pronouncing any judgment as to issues, appointed pursuer to state specifically what he alleged with regard to these matters.