Scottish Court of Session Decisions

This was an action of damages at the instance of James Craig, spirit-dealer, West Merryston, against John Kidd Peebles, Procurator-fiscal at Airdrie. The pursuer held a license for a public-house at West Merryston, which during the currency of this license was almost entirely destroyed by fire. Soon thereafter the pursuer was served with a complaint at the instance of the defender, charging him with “an offence within the meaning of the ‘Public Houses Acts Amendment (Scotland) Act, 1862,’ section 17th; in so far as on or about the 8th day of May 1875 the said James Craig, defender, did within the broken walls of an old public-house which was burnt down, situated in West Merryston, in the parish of Old Monkland and county of Lanark, unlawfully traffic in whisky or other exciseable liquors, without having obtained a certificate in that behalf in terms of said Act; and such offence is the first offence, whereby the said James Craig is liable to forfeit and pay the sum of £7, with the expenses of prosecution and conviction, to be ascertained upon conviction, and in default of immediate payments thereof to be imprisoned on his own charges and expenses for a period of six week's.”

On this complaint the pursuer was tried on 20th May 1875 at Airdrie before two Justices. He pleaded his license in bar of the complaint, and the Justices took time to consider the case, and adjourned it until the 27th, on which date, having in the interval consulted the Sheriff-Substitute, they convicted the defender, finding him liable in a penalty of £7, with £2 of expenses, or in default six weeks' imprisonment.

On 16th June 1875 the pursuer brought the proceedings before the High Court of Justiciary by suspension, and the conviction was quashed.

Craig accordingly brought this action against Peebles for £500 damages, on the ground that the complaint had been brought maliciously and without probable cause.

The pursuer, while admitting that the house had to a considerable extent been destroyed by the fire, denied that it was destroyed to such an extent as to warrant the defender's proceedings. The pursuer further made full averments of malice, and his averment of want of probable cause, in a condescendence of res noviter lodged by him, was as follows:—“The said conviction was procured by the defender when he well knew that there was no just, reasonable, or probable cause therefor, and solely to gratify his malicious feelings against the pursuer, and when he farther well knew, or ought to have known, that, owing to the equal division of opinion which had occurred at first diet, it was his duty as prosecutor not to ask for a conviction of the pursuer, in terms of section 21 of the Summary Procedure Act, under which the proceedings had been taken and carried out.”

The defender's first plea in law was that the statements on record were not relevant to support the conclusions of the summons.

The Lord Ordinary pronounced the following interlocutor:—

26 th November 1875.—The Lord Ordinary having heard counsel, and considered the record and whole process, sustains the first plea in law for the defender: Assoilzies him from the conclusions of the action, and decerns: Finds the pursuer liable in expenses, &c.

The following opinion was delivered by Lord Young in pronouncing judgment: —

This case, although the facts are novel, presents a question of general interest and importance.

The defender prosecuted the pursuer before the Justices on the Public Houses Act, 1861, for selling spirits without a license, and obtained a conviction, which was subsequently set aside by the Court of Justiciary. Neither before the Justices nor in the Court of Justiciary was there any dispute about the facts, and the only controversy regarded the legal question on which the Court of Justiciary, differing from the Justices, set aside the conviction. The accused party (the pursuer) acknowledged the sale within the

Page: 288↓

specified premises as alleged, and relied in defence upon a current certificate, which undoubtedly applied to the premises at one time. The question was whether, the premises having been burned down to such an extent as to be quite un-inhabitable (as they were in fact uninhabited), the certificate remained available to warrant the sale of spirits within the roofless walls. The Justices determined this question in the negative, and imposed the penalty. The Court of Justiciary, having another opinion of the law, quashed the conviction, and ordered the penalty (and expenses) to be repaid.

The pursuer now sues the Fiscal for damages, averring malice and want of probable cause in general terms. It is not alleged that the Fiscal misrepresented or withheld any fact from the Justices; that he practised any artifice to mislead or prejudice them; or, in short, that he misconducted himself in any way, or presented the case otherwise than fairly to the consideration of the Justices, on the proved and indeed undisputed facts of it. Nothing capable of being characterised as malicious or without probable cause is imputed to the Fiscal, except only the fact of instituting and prosecuting the complaint before a court of competent jurisdiction. But the only objection to the prosecution is on the legal question which I have noticed, and this question was presented to the Justices upon the true and undisputed facts which raised it, and was decided by them to the best of their judgment. According to this judgment the pursuer had no defence on the facts, and was undoubtedly subject to the penalty which the Justices imposed. The prosecutor was competent, the complaint was relevant, the Court had jurisdiction, the procedure was regular, and the facts were fully and fairly presented by unobjectionable evidence. But the facts raised a novel question of law which it was the province of the Justices to decide. After the judgment of the Court of Justiciary it must of course be assumed that they decided it erroneously; but having taken part in the judgment of the Court of Justiciary and concurred in it, I must say for myself that I did not and do not regard the judgment of the Justices as of a character to warrant any strong expressions of disapprobation or surprise. I think the Judges all felt that it was a novel and important question, and we certainly heard a full argument before deciding it. The expression ‘probable cause’ is not a happy one to use with respect to an opinion or judgment on a question of law, but using it here to signify that the view of the law which the Fiscal maintained and the Justices upheld was not irrational, and was such as reasonable men in their position (or indeed in any position) might excusably entertain and act upon, I cannot hesitate to say that there was probable cause. It was certainly unusual, if not unprecedented, to sell spirits within the bare and roofless walls of a burned-down house, and I cannot say it was unreasonable to take the opinion of the Justices on the question, whether the certificate continued available notwitstanding of the change on the character of the premises for which it had been granted.

I am therefore of opinion that this record presents no relevant case against the defender. I have already observed that no misconduct or unfairness in the management of the case is imputed to him; and notwithstanding the averment of malice, I must decline to entertain the action, in respect there was probable cause for prosecution. The question of probable cause regards, and can only regard, the matter of law on which the guilt or innocence of the pursuer turned; and this it is, I think, for the Court to decide.

I attach no significance to the averment that the defender ‘knew’ the law when he instituted the prosecution; and could not for a moment entertain the proposal to send it for trial by a jury as a question of fact. The Justices decided the point of law in one way, and the High Court in another; and although the Judges of the High Court were unanimous, no one, I suppose, would have greatly wondered had they differed in opinion. It must come to the question of probable cause in the sense which I have explained, and which itself is a question of law for the Court. Assuming the law to be as decided by the Justices, there was undoubtedly probable cause for the prosecution, for on that assumption the accused was confessedly guilty. I cannot of course make that assumption except for the argument leading to the result which I have reached and dealt with, viz., that want of probable cause can only be alleged and maintained upon the character of the legal error.

Had the question of probable cause depended on any disputed matter of fact, it would have been improper to decide it without taking the opinion of a jury on the fact, or without inquiry in some form; but it being clear that it entirely depends on the character of the legal error which was committed, I see no room for inquiry, or good reason for sending the case to trial.

I regard the case as important because of its bearing on the liability of prosecutors to actions of damages for mistaking the law. Regularity of procedure is exacted of them under pain of damages, but a mistake on a point of law, as to which Judges may not unreasonably differ in opinion, is another matter, and to extend their liability to this extent would, I think, prejudicially interfere with the administration of justice.

I have only further to observe that sec. 30 of the Summary Procedure Act is in my opinion inapplicable. It relates only to the amount of damages recoverable in cases where malice and want of probable cause are not, as here, essential to liability. In such cases the clause provides that the damages shall not exceed, unless the pursuer shall aver and prove that the proceeding inferring liability was taken or done maliciously and without probable cause.

The pursuer reclaimed, and argued—The averment of want of probable cause was sufficient, and did not require to be more specific. The question of probable cause must be tested by the facts as to the actual state of the building when the complaint was brought.

Authorities— Baines v. MiLelich, 23 D. 12,858; Urquhart v. Dick, 3 Macph. 932; Rae v. Linton, 12 Scot. Law Eep. 399, 2 R. 669.

At advising—