The Law and Practice of Citation and Diligence; On the Basis of the Late Mr. Darling's Book on the Powers and Duties of Messengers at Arms and Other Officers of the Law (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1862. Excerpt: ... CHAPTER XXXVIII. SEPARATION FOR WRONGOUS PROCEEDINGS. When, in the name of legal process, a person has been improperly put to trouble and inconvenience at the instance of another, he has his remedy, as in the case of any other injury, by an action for reparation. It is not, however, in every case where it turns out that the proceedings have been mistaken, that the damnified party will have his action for reparation. There are certain classes of persons and proceedings so privileged, that the Act, though mistaken, will be held justifiable, unless accompanied with some other specific wrong. 1. Information of a Crime. Thus the detection and punishment of crime is held so laudable an object, that even a private person giving information of a crime to the proper authorities, whereby another is apprehended, is not liable to an action for reparation, although it turn out that the information was erroneous, unless he acted maliciously and without probable cause.1 Much more is this the case with a public officer such as the procurator-fiscal, whose special duty charges him with the detection of crime.2 The issue to try a question of damages has the same form in both cases. The difference between the two will probably consist chiefly in this, that in the case of the private party who has no special mission in the detection of crime beyond his duty as a member of the public, malice will much more easily be presumed if he is found to have acted without probable cause. There is another privilege enjoyed by a public officer such as the procurator-fiscal, --that as, in the discharge of his official duty, 1 Shepherd v. Fraser, 26 Jan. 1849, XI. D. 446; Cameron v. Hamilton, 1 Feb. 1856, No. 87; see Callanderv. Milligan, 20 June 1840, XI. D. 1174. - Munro v. Tay...