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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sheridan v. Peel [1907] ScotLR 406 (26 February 1907) URL: http://www.bailii.org/scot/cases/ScotCS/1907/44SLR0406.html Cite as: [1907] ScotLR 406, [1907] SLR 406 |
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Page: 406↓
(Single Bills.)
A mortgage broker's clerk, who had been summarily dismissed, brought an action against his employercto recover damages for an alleged malicious charge of theft made against him to the procurator-fiscal, upon which he had been arrested. The charge which was alleged to have been made was of the theft of certain letters from would-be clients of the employer. The employer admitted having complained to the procurator-fiscal of the conduct of the pursuer, who, he alleged, had improperly communicated to his competitors applications by would-be clients.
The pursuer sought a diligence to recover (1) all letters passing between the pursuer and the defender or his clients; (2) communications passing between the defender and the procurator-fiscal having relation to the complaint made by the defender; (3) the charge books and notes of the procurator-fiscal, that entries dealing with the complaint might be taken; and (4) the precognition taken of the defender by the procurator-fiscal.
Held that (1), (3), and (4) must be disallowed, but that (2), intimation having been given to the Lord Advocate, who had adjusted the article and did not object, was to be allowed. Henderson v. Robertson, January 20, 1853, 15 D. 292, followed.
Observations per the Lord President as to recovery of documents in custody of Crown officials. Forbes v. Gracie, October 29, 1901, 9 S.L.T. 217, disapproved.
On 9th July 1906 Thomas Patrick Sheridan, mortgage broker's clerk, 271 Camberwell
Page: 407↓
New Road, London, brought an action of damages for slander against Arthur Peel, money lender, carrying on business at 37 Castle Street, Edinburgh, in which the following issue for the trial of the cause was approved—“Whether, on or about December 1905 or January 1906, the defender falsely, maliciously, and without probable cause, informed or caused information to be given to George Somerville, Procurator-Fiscal of the City of Edinburgh, falsely accusing the pursuer of theft of documents, in consequence of which the pursuer was apprehended, searched, and imprisoned in the City Police Chambers and in the Calton Jail, to the loss, injury, and damage of the pursuer. Damages laid at £500 sterling.” The pursuer had been in the defender's service from 1st May to 8th December 1905, and was summarily dismissed. He averred — “(Cond. 8) In or about the said month of December 1905, or the month of January 1906, the defender lodged information with George Somerville, Procurator-Fiscal for the City of Edinburgh, that the pursuer had stolen from the defender's office at 37 Castle Street—(1) a letter from the said J. S. R. Baxter [ an applicant for a loan whose application the defender had averred the pursuer had not intimated to him but disclosed to competitors] to the defender, dated 6th June 1905; (2) a statement of particulars with reference to a proposed mortgage for £2800 upon property in Musselburgh belonging to the said J. S. R. Baxter; (3) a letter from the said J. S. R. Baxter to the defender, dated 15th June 1905; (4) a letter from the said J. S. R. Baxter to the defender, dated 14th November 1905; and (5) document containing particulars of interest of the said Charles M. Horne [ another applicant like Baxter] in heritable estate in Aberdeen under his mother's deed of settlement….” The pursuer sought a diligence for the recovery of documents.
The specification of documents sought to be recovered included the following articles—“1. All letters, telegrams, and other communications passing between the pursuer on the one hand and the defender or his clients on the other hand from 1st May 1905 to 8th December 1905. … 6. All letters and other communications passing between the defender or anyone on his behalf and the Procurator-Fiscal for the City of Edinburgh or anyone on his behalf having relation to the complaint made by the defender against the pursuer. 7. The charge books and other books kept by, and all records and other notes made by, the said Procurator-Fiscal or anyone on his behalf, that excerpts may be taken therefrom of all entries therein relative to said complaint. 8. The precognition taken from the defender by the said Procurator-Fiscal mentioned in answer 8.” [Ans. 8, inter alia, stated that the defender after making a complaint as to the pursuer's disclosing business to competitors had at the request of the Procurator-Fiscal allowed himself to be precognosced.]
Counsel for the defender objected to the said articles of the specification, and referred to Arthur v. Lindsay, March 8, 1895, 22 R. 417, 32 S.L.R. 334; Watson v. M'Ewan, July 25, 1905, 7 F. (H.L.) 109, 42 S.L.R. 213.
Counsel for the pursuer cited Henderson v. Robertson, January 30, 1853, 15 D. 292, and Forbes v. Gracie, October 29, 1901, 9 S.L.T. 217.
Article 1 is as follows—[ His Lordship quoted article 1]. This call is clearly irrelevant. No amount of letters passing between the pursuer on the one hand and the defender or his clients on the other hand can prove that the communication, which was not made between the writers and receivers of those letters, was made maliciously or not. Accordingly this article must be disallowed.
Article 6 is in these terms—[ His Lordship read article 6]. I think this is a proper call. Any letter passing between the defender and the procurator-fiscal of the city in which the charge was made, or any correspondence arising out of such charge, is fair evidence. This was just the class of evidence which was held to be recoverable in Henderson v. Robertson, January 20, 1853, 15 D. 292.
Articles 7 and 8 are in these terms—[ His Lordship read articles 7 and 8], These articles are both objectionable in any form in which they can be stated. It is out of the question to allow the recovery of a precognition which is not necessarily what the defender said, but is merely the procurator-flscal's (or his clerk's) version of what he said. Such a precognition is clearly not evidence against the defender. It is equally out of the question to allow the recovery of the charge books and other books kept in the procurator-fiscal's office, for the defender has nothing to do with these books and they cannot be evidence against him. This would have been enough for the disposal of the case, if it had not been that a case has been quoted to us in the Outer House ( Forbes v. Gracie, Oct. 29, 1901, 9 S.L.T. 217) in which Lord Kincairney is reported to have granted a diligence couched in similar terms to article 7. I can only say that that decision was, in my opinion, quite wrong. His Lordship is further reported to have observed, in granting the diligence, that “it would be open to the public official called on to produce under the diligence to plead to the commissioner confidentiality;” That is also quite wrong. It is contrary to the conclusion to which your Lordships have come in a recent case which is now at avizandum— Dowgray v. Gilmour and Others. It is quite clear that where documents sought to be recovered are in the custody of the Lord Advocate or of the Crown officials, the only proper course is to intimate to
Page: 408↓
The Court disallowed articles 1, 7, and 8 of the specification and continued article 6 in order that intimation might be made to the Lord Advocate.
On 26th February counsel for the Lord Advocate appeared at the bar and stated that he had adjusted article 6 with counsel for the pursuer, and that accordingly he did not oppose that article, as adjusted, being granted.
The article as adjusted was—“All letters and other communications passing between the defender or anyone on his behalf and the Procurator-Fiscal for the City of Edinburgh or anyone on his behalf having relation to the information mentioned in condescendence 8 made by the defender against the pursuer prior to 23rd January 1906.”
The Court granted the specification as amended, and found the Lord Advocate entitled to two guineas of expenses.
Counsel for Pursuer— MacRobert. Agent — Walter M. Murray, S.S.C.
Counsel for Defender — W. T. Watson. Agents— M. J. Brown, Son, & Company, S.S.C.
Counsel for the Lord Advocate— Adam, A.-D. Agent— Crown Agent.
