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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Dickie v. Dickie. [1825] ScotJCR 3_Murray_509 (12 July 1825) URL: http://www.bailii.org/scot/cases/ScotJCR/1825/3_Murray_509.html Cite as: [1825] ScotJCR 3_Murray_509 |
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Page: 509↓
(1825) 3 Murray 509
CASES TRIED IN THE JURY COURT.
No. 52
PRESENT,
Finding for the defenders in an action of wrongous imprisonment brought by a person sent to a mad-house.
An action or damages against a brother of the pursuer, and the medical person who granted a certificate—the Sheriff, and several other
Page: 510↓
Defence.—The general defence was, that the pursuer was insane. There were separate defences for the Sheriff, and some of the other defenders.
The question in the issues was, whether the pursuer was of sane mind, and whether the defenders caused him to be apprehended and confined as a lunatic? &c..
Incompetent to impeach incidentally a proceeding in the Court of Session, or to show that no authority was given for the application to that Court.
After several witnesses had been examined, it was proposed to give evidence, that the brother of the pursuer had got possession of, and misapplied the funds of the pursuer; and it was afterwards proposed to call the brother of the pursuer to prove that he gave no authority for the application to the Court of Session.
Jeffrey.—That was a regular proceeding under authority of the Court of Session.
Page: 511↓
It is a very serious and delicate question for the Court and Jury, and we have a right to expect evidence of persons of skill. The evidence of the witnesses, coachmen and others, we have had, though perfectly respectable, is not such as we are entitled to expect. I think you should go to the important part of your case, and produce medical evidence.
A gentleman appears in another Court with the same authority as the counsel appear here, and can I take evidence as to their having appeared without a written mandate.
Napier, for the pursuer.—This is a most distressing case, as the pursuer was taken up by the police when drunk, and was carried to a lunatic assylum. The person who certified him insane was not a qualified surgeon; and the Sheriff improperly granted the warrant. The pursuer is entitled to damages, whether the parties acted from malice, interest, or carelessness.
Jeffrey.—The case has been improperly narrowed, by calling, as parties, those who could have best given evidence. There is no question here on the violation of the statute, and the Sheriff is not liable unless he acted maliciously, and none of them are liable here.
Page: 512↓
Pyper.—The defenders are bound to prove insanity. We found on the act, to show what the qualification of the medical person should be, and that the negligence of the Sheriff amounted to what the law holds malice. Pitcairn v. Deans, 18th February 1715.
Pyper.—There are others. Anderson v. Ormiston, &c. 3d January 1750, M. 13949; Bell v. Baillie, 2d November 1744, M. 13951; Ersk. IV. 4, 5, and 31, Steel v. Ramsay, 14th February 1745, M. 13952.
Page: 513↓
A prosecution of the nature of the one now before us, is unprecedented in Scotland, and there have been few even in England. Little information is to be got from such as have been tried, as they are cases of the blackest kind. This, on the contrary, is an accusation not of one, but of a number (seven) of persons, and some of them of the most amiable dispositions, of a combination against this individual, and all without the smallest proof as to any of them. None of them have any interest except the brother, and he could gain nothing by his situation of factor loco tutoris.
It is clear, in this case, that, if the defenders truly and bona fide held this person to be insane, or had any rational and tolerable ground for acting as they did on every principle of justice and humanity, it is evident that they are not liable for having exceeded their duty. If they had reasonable ground, and, still more, if they had sure ground for believing him insane, the pursuer has no case.
It is impossible to say the proceedings were quite regular, but the act prescribes the penalties,
Page: 514↓
The proceedings as to the property of the pursuer were necessary and proper, and from the certificates obtained in that proceeding, and of the late Dr Gregory at a subsequent period, I cannot entertain a doubt of his being insane. Something was said as if Dr Gregory had seen a different individual. I confess, an accusation of a criminal fraud, brought forward in this manner, fills me with astonishment.
It is only by proof of fraud, or such negligence as amounts to malice, that damages can be given in this case, and you must say whether you think either proved—to me it appears that there is not a vestige of either.
Verdict—“For the defenders on all the issues.”
Counsel:
Pyper,
Napier, and
Maidment, for the Pursuer.
Jeffrey,
Cockburn, and
A. Wood, for the Defenders.