Scottish Court of Session Decisions

Charles Johnstone, weaver in Dundee, was liferenter, and his children were fiars, of a house in King Street, Dundee, consisting of two stories with garrets and cellars, which was burnt on 28th October, 1836. They presented a petition to the Sheriff of Forfarshire, libelling on the statute 3 Geo. IV. c. 33, § 10, which enacts “That in every case where any damage or injury shall be done to any church, chapel, or building for religious worship, or to any house, shop, or other building whatsoever, or any fixtures attached thereto, or any furniture, goods, or commodities therein, by the act or acts of any unlawful, riotous or tumultuous assembly of persons, or by the act or acts of any person or persons engaged in, or making part of such unlawful, riotous or tumultuous assembly, the party injured or damnified thereby shall be entitled to recover full compensation for the loss or injury, by summary action against the town-clerk of the city or burgh within which the loss or injury shall have been sustained, or the clerk of supply of the county or stewartry wherein the loss or injury shall have been sustained, if the same shall not have been within any city or burgh, which action shall and may be brought before the Justices of the Peace, acting in execution of an Act passed in the thirty-ninth and fortieth years of the reign of his late Majesty King George the Third, entitled, An Act for the more easy and expeditious recovery of small debts, and determining small causes in that part of Great Britain called Scotland, subject to all the provisions of the said Act, where the sum claimed shall not exceed five pounds, and shall and may be brought before the Judge-Ordinary, where the amount claimed shall exceed that sum.” The petitioners alleged that their house had been attacked, and injured, and ultimately burnt down, and the furniture, &c. destroyed, by the acts of an unlawful, riotous, or tumultuous assembly, or of persons engaged in such assembly. The petition was directed against Christopher Kerr and William Barrie, conjunct town-clerks

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^* When this case was called, the advocator's senior counsel was engaged in the Second Division. The junior counsel was therefore required to state the case; and, at the conclusion of the discussion, the Court intimated their resolution to require the junior counsel to debate the cause, on all ordinary occasions, when the senior counsel was otherwise engaged.

of Dundee. The respondents denied the allegations in the petition, except that the house, which contained a low brothel, had been injured by fire, which, they contended, had probably occurred within the house, and had not been caused by any mob from without.

A proof was allowed, under which evidence of a very contradictory nature was adduced. The Sheriff found it not proved that the house was wilfully set on fire by any person from the crowd who were assembled opposite the house at the time. The petitioners brought an advocation, and the Lord Ordinary pronounced this interlocutor:—“Finds that the action which has been instituted under the 3d of Geo. IV. cap. 33, § 10, rests, and must be rested on the averment, that the house of the pursuers was attacked, battered, and burned, and that their personal property therein was injured or taken away, ‘by the act or acts of an unlawful, riotous, or tumultuous assembly of persons, or by the act or acts of certain person or persons engaged in, or making part of such unlawful, riotous, or tumultuous assembly:’ That it is proved that the house was burned, and some of the property within it injured; but that it is not proved that this was done either by such an assembly, or by any person or persons making part of it: Finds, therefore, on this ground of fact, that the case is not brought within the operation of the statute: Sustains this defence; assoilzies the defenders, and decerns: and finds the pursuers liable in expenses.” ^*

The advocators reclaimed, and the Court unanimously altered. Their Lordships held it clearly proved, inter alia, that there was a riotous mob in the street, opposite to the house at the time when the fire broke out in it, and that the house was violently assailed by the mob. Their Lordships also held it established, that, after making every deduction from the

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^* Note.—“The Lord Ordinary advocates the case, and decerns de novo; because, though he agrees with the Sheriff in his opinion of the main fact, he thinks that his interlocutor contains remarks in the form of findings, which, even though they were indisputable, are unnecessary.

“It is necessary for the success of the pursuers that they should prove, 1st, That there was not merely a crowd of people, but a riotous and tumultuous assembly; 2dly, That the injury was done by this assembly, or by one or more of its members. Whether they have proved this or not, depends entirely on the credit which the Court may give to the witnesses for the one party, or to those for the other. They are directly contradictory; and each set, if believed, makes out the case of the party for whom it is called. The Lord Ordinary feels compelled to prefer the statements of the witnesses for the defenders. He thinks them persons of a more credible class; giving more probable accounts; with better opportunities of knowledge, and less contradicted on testing points. If there really was an assembly of the statutory description, it will certainly not deprive the pursuers of the statutory protection, that their house was disorderly, or that this made the people averse to assist in extinguishing, the fire. But the character and habits of the place are important, as accounting for the existence of a crowd, without the necessity of supposing that there was a mob, and for the premises being set on fire by the inmates, without ascribing its being burned to any riotous assembly; and, on the whole, the Lord Ordinary, viewing the case as a juryman, is not satisfied with the pursuers' evidence.”

credibility of some of the advocators' witnesses, several voices in the mob had repeatedly been heard to call out to burn the house, a short time before the fire broke out in it; that a lighted candle had been procured by one of the mob, and carried in at the back of the house, accompanied with expressions indicative of a purpose to burn it, shortly before the fire broke out; that, in front of the house, about the same time, a man, from the crowd, was seen advancing towards the house with a large piece of brown paper lighted in his hand; that another person took it from him, and was immediately struck at for so doing, upon which he threw down the paper, and a third man from the crowd took it up, still burning, and rushed into the house with it, and in 15 or 20 minutes thereafter flames burst through the roof of the house; that the house itself was in complete possession of the mob, and that several boys or lads were seen running about the house, after it had caught fire, carrying fiery sticks in their hands, and saying that “the house would go now.” Their Lordships considered it also a circumstance of real evidence, deserving considerable attention, that, after the fire had fully broken out, and the officers of police were engaged in attempting to subdue it, the mob in general, though no longer acting with violence, were influenced by a feeling of so much hostility towards the house, that they refused to lend any assistance in extinguishing the fire.

Parties were at issue as to the extent of the damage sustained by the advocators, and the cause was remitted to the Sheriff to proceed with it.