Scottish Court of Session Decisions

Isabella Fraser or M'Gilvray, wife of John M'Gilvray, with consent of her husband, raised an action in the Sheriff Court at Glasgow, against William Bernfield, 102 North Woodside Road, Glasgow, Fanny Cohen also residing there, Alexander Main and William Nisbet, both police constables at Camperdown Police Office, Glasgow, and Samuel Glass, Inspector at said office, all jointly and severally or severally. The pursuer prayed the Court to ordain the defenders jointly and severally, or severally, to pay to the pursuer the sum of £500 as damages for slanderous charges, assault, and wrongous and oppressive apprehension.

This case is reported solely upon the points involved in the case made against the police constables for wrongous and oppressive apprehension.

Page: 303↓

The pursuer averred that she was forty years of age, and resided with her husband at 30 Kelvin Street, Glasgow; that on 2nd October 1899, at noon, she called at the shop 102 North Woodside Road, where the defenders Bernfield & Cohen, carried on business as brokers, for the purpose of making inquiry regarding a chest of drawers, and that after transacting her business with Cohen she went home. She also averred as follows;—“(cond. 3) About three hours afterwards, on said date, and while the pursuer was in her house at 30 Kelvin Street aforesaid, which is one stair up from the ground level, and on the door thereof the pursuer's husband's name appears on a brass plate, the defenders Main and Nisbet called on her along with the defender Cohen, and stated in the hearing of Mrs Young, 30 Kelvin Street, Glasgow, and pursuer's daughter Catherine, and her neighbours, that Cohen had charged pursuer with cursing and swearing and making a disturbance in the said shop at 102 North Woodside Road aforesaid on that day, and that pursuer must come with them at once to the police office at Camperdown Street, Glasgow. Pursuer immediately denied the charge, and signified her willingness to accompany them to the police office, but before she could put on her hat and jacket, or any other thing properly, the said constables suddenly seized hold of her, and in the presence of her neighbours and a large number of people dragged her out of her said house down the stairs into the street, and thence to the Camperdown Police Office. Pursuer throughout offered no resistance, and said to the constables that she would go quietly with them if they would release their hold of her, but they paid no heed to her requests.” The pursuer further averred that at the police office the charge was repeated to the defender Glass, who ordered her removal to a cell, and detained her therein for five hours, after which she was released on bail, that on the following morning she appeared to answer to the charge, but that no one appeared against her, and that she was allowed to go; and that her bail money was returned to her. “(cond. 7) The whole of the said proceedings were wrongous, irregular, and oppressive, and the charge made by Bernfield & Cohen, and repeated by the two constables, was false and most slanderous. The pursuer was apprehended without a warrant of any kind, and was subjected to the indignity of being dragged from her house through the public streets of Glasgow, and of being detained in the public cell without a warrant of any kind having been first obtained from the proper authorities. The defenders, in apprehending and detaining the pursuer in the manner above mentioned without legal warrant, and in treating her in the manner before described, acted maliciously, oppressively, and illegally, and without any just or probable cause. In executing the arrest they used great harshness and acted with quite, unnecessary force and violence. The charge preferred against her was utterly groundless, and was also made maliciously and oppressively,”

The pursuer pleaded—“(2) The pursuer having suffered loss, injury, and damage through said slanderous charges and the acts of defenders, or all or one or other of them, is entitled to reparation, solatium, and damages, and decree should be granted, with interest and expenses, as craved. (3) The pursuer having been assaulted by the defenders Main and Nisbet, the latter are liable in damages to her. (4) The pursuer having been illegally, wrongously, and oppressively seized and marched in custody of the defenders Main and Nisbet, and afterwards detained by the defender Glass in the police office, these defenders are liable to pursuer in reparation, and decree should be granted, with interest and expenses as craved.”

Defences were lodged (1) for the defenders Bernfield & Cohen, and (2) for the defenders Main, Nisbet, and Glass.

All the defenders pleaded, inter alia, that the action was irrelevant.

On 13th February 1900 the Sheriff-Substitute ( Strachan) pronounced the following interlocutor:—Before answer allows parties a proof of their averments, other than the defender Samuel Glass, and appoints the case to be sent to the diet roll of the 23d current: Finds that no relevant case has been stated against the said Samuel Glass: Therefore assoilzies him from the conclusions of the action: Finds no expenses due, and decerns.”

The defenders Main and Nisbet appealed to the Sheriff ( Berry), but be adhered.

The pursuer appealed to the Court of Session for jury trial.

She proposed two issues for the trial of the cause. The first embodied her case against the defenders Bernfield & Cohen, damages being laid at £250. The second was in the following terms:—“(2) Whether on or about 2nd October 1899 the defenders Alexander Main and William Nisbet, maliciously and without probable cause apprehended the said pursuer in her house at 30 Kelvin Street, Glasgow, and conveyed her to the police office at Camperdown Street, Glasgow, to the loss, injury, and damage of the pursuer? Damages laid at £250.”

When the case was before the Court the pursuer amended her second issue by striking out the words “maliciously and without probable cause” and inserting “wrongfully and with unnecessary force and violence.”

Argued for the defenders Muir and Nisbet—The action as against them was irrelevant. The averments of the pursuer were not sufficiently distinct and substantive to go to trial. They were expressed in the language of exaggeration. When an accused person was apprehended it was quite a common occurrence for resistance to be made, and if so it was impossible for the constables to avoid exercising a certain amount of violence. It required a very clear case of injustice to entitle a person who had been apprehended to an action against the constable who had performed the duty of arresting him— Malcolm v. Duncan, March 17, 1897, 24 R. 747.

Page: 304↓

Counsel for the pursuer and appellant maintained that the action was relevant, and that the issues as amended should be allowed and approved.