Scottish Court of Session Decisions

George Aitchison, a mason in the county of Roxburgh, sued the defender, who is a farmer residing at Headshaw, in the same county, for damages on account of an alleged personal assault. It appears that the pursuer had been trespassing on the defender's farm, shooting crows, and that the defender had endeavoured to take the pursuer's gun from him, that a struggle ensued, that the pursuer fell to the ground, was struck, &c. The defence was, that from what passed the defender had reason to believe that the pursuer was going to shoot him, and that in doing what he did the defender was only disarming an enemy. The Sheriff-Substitute ( Russell) decerned for the pursuer, and assessed the damages at £15. The Sheriff ( Pattison) on appeal altered. After several findings, disposing of the facts of the case, his Lordship—“Finds, as matter of law, that in the circumstances the defender did not do any wrong to the pursuer in taking hold of the pursuer's gun and endeavouring to disarm him; and that the pursuer has no claim against the defender for damages on that account: Finds that, in regard to what followed, there is no evidence to show that the defender assaulted the pursuer, or did more than was necessary for his own defence: Finds, separately, that the pursuer having afterwards assaulted the defender by throwing stones at him, and striking him therewith on the head when he was going away, and having otherwise injured the defender, is barred from claiming any damages from the defender: Therefore sustains the defences, and assoilzies the defender from the conclusions of the action: Finds no expenses due to or by either party, and decerns.”

The Sheriff adds a long Note to his judgment, in the conclusion of which he observes—It appears

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from the evidence that the pursuer struggled with the defender for the gun (which indeed the pursuer is obliged to admit in his cross-examination); that in the course of the struggle the gun fell to the ground; that the pursuer and defender then seized hold of one another, or, as one of the witnesses says, ‘got into grips,’ and both fell; that when on the ground they struck one another on the face; that the pursuer kicked the defender on the leg; that when they got up, and when the defender was going away to his own house, the pursuer threw several stones of road metal at the defender, and hit the defender with some of them on the back of the head, and that he then took up the gun, and called upon the defender, with an oath, to ‘come on.’ There is no proof except the pursuer's own evidence, which cannot he relied on, that the defender kicked the pursuer. There is no proof which of the two first seized the other after the gun fell, or which of them, when they were down, first struck the other on the face. The defender admits that he struck, but says that the pursuer struck him first. There is nothing to contradict this except the pursuer's statement, who says that lie did not strike the defender at all; to which the Sheriff does not attach any weight.

If the defender was justified in taking hold of the gun, is there anything to show he was the assailant in what followed? The Sheriff thinks there is not. Probabilities would lead to the inference that the pursuer was then the assailant. But the proof is defective; and all that can be said is, that it is impossible to say which of the two began the tussle, or which of them was most injured. Certainly the throwing of the stones or road metal at the defender, after both parties had risen and the tussle had come to an end, and the defender was going away, was not necessary as a defence, or justifiable—was in fact a new assault— and might have led to much more serious injury than any the pursuer had received.

Upon the whole, therefore, the Sheriff thinks that the pursuer's claim for damages is not well founded; and that, even if he might have had a claim otherwise, he cannot now, after having taken satisfaction out of the defender, claim anything.

“The Sheriff thinks it is not a case for expenses on either side.”

The pursuer appealed.

M'kie for him.

Strachan in answer.

The Court adhered to the Sheriff's judgment.