WILLIAM KELLY v COMMISSIONERS OF POLICE and MAGISTRATES OF EDINBURGH (Court of Session)

A record was made up upon a revised condescendence and answers, with notes of pleas in law.

In his revised condescendence the pursuer repeated his several averments contained in his summons, but he did not there state, in terms of the police act, that the acts charged, and for which he claimed damages, were done from ‘wilful corruption or oppression, or from culpable negligence, out of which real injury has arisen.’

The record was closed, and the defenders objected to the relevancy, and pleaded —

Even therefore if, in the present case, the pursuer had charged relevantly in his summons, yet, as he did not repeat in his revised condescendence that the acts there charged were done from wilful corruption, or oppression, or culpable negligence, from which real injury had arisen, as required by the statute, no issue could be prepared from the closed record, and the case was not therefore relevantly laid to go to a jury. The action therefore fell to be dismissed.

The Lord Ordinary found, ‘that the re-revised condescendence for the pursuer, on which the record on his part is now closed, does not contain any of those special allegations against the defenders, of which one or other is, by the 134 sect. of the 3d of Geo. IV, c. 78, declared to be indispensable to the support of any action against judges, commissioners, superintendent, or any other person or persons, for any thing done in the execution of the said act, and therefore dismisses the action, assoilzies the defenders, and decerns.’