Scottish Court of Session Decisions

Subject_1 PART I.

JURISDICTION.

William Mowat of Garth,
v.
John Bruce Stewart of Sembister

Date: 5 February 1777
Case No. No. 4.

Competent to sue in the Court of Session, declarator of the right of fishery conferred by the statute 29. Geo. 2. Cap. 23. and action of damages for infringing that right.

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The lands of Garth in Shetland are about 20 miles distant from some islands or rocks on the east side of Shetland, called the Skerries. Near these islands is a considerable fishery, on account of which their shores and beaches are frequented by the fishermen. The fishers land their boats, erect huts with sea-mark, and cure and dry their fish. This they consider to be in conformity with the privileges of general fishery conferred by statue 29th Geo. 2d, Cap. 23.

The tenants and fishermen belonging to the estate of Garth had been in use, past the memory of man, of exercising this privilege.

The greatest part of these isles of rocks belonged to the sequestrated estate of Girlista, held in tack by Mr. Bruce Stewart.

In June 1771, these fishermen, to the number of 28, in five boats, who had built huts, and were fishing as usual, were forcibly obstructed by the factor for Mr. Bruce Stewart, who pulled down the huts, and obliged the men to desist.

The reason given for the obstruction was, that roads and foot paths had been unwarrantably made by the fishermen through ground which was fit for corn and pasture.

On the other hand, it was contended, that no proprietor of ground in similar situations, is entitled to prevent or interrupt the general liberty, which is competent to all, of fishing on those coasts in terms of the statute.

Mowat of Garth filed informations in Exchequer against Bruce Stewart and his factor, founding upon the following clause of the statute:

“And if any person or persons shall presume to demand or receive any dues, sums of money, or other consideration whatsoever, for the use of any such ports, harbours, or forelands, within the limits aforesaid, so made use of for the purposes aforesaid; or shall presume to obstruct the fishermen or other persons employed in the taking, buying, or curing of fish, in the use of the same, every person so offending shall, for every such offence, forfeit the sum of £100, to be recovered and levied in manner herein after directed,”

and which is declared to be actionable by bill or information before the Court of Exchequer in Scotland.

Subpœnas were obtained against the defendants; but it having been found troublesome and expensive to execute these in that country, because no proof could be led in a cause in Exchequer without bringing the witnesses to Edinburgh, the term was allowed to elapse.

In the succeeding year, at the approach of the fishing season, application was made to the Court of Session by bill of suspension, and an interdict was obtained against Mr. Bruce Stewart from interrupting the fishers.

The suspension came, (2d. March 1773,) to be discussed before Lord Kennet, who pronounced this interlocutor, “Renews the interdict in terms of the said act of Parliament, without prejudice to the charger stopping the suspender in case he exceed the bounds prescribed by the act, and lands his nets on any cultivated grounds belonging to the charger, and ordains the suspender to give in a condescendence of the facts he alleges and offers to prove.”

Mowat likewise raised a summons of declarator in the Court of Session, against Bruce Stewart and his factor, of his right to fish upon the coasts of the Skerries, and for damages for the oppression committed by interrupting his tenants in the exercise of his privilege.

The summons and suspension were conjoined,—and a proof was taken.

The Lord Ordinary pronounced an interlocutor, continuing the interdict, but finding that the quantum of damages had not been proved, therefore assoilzieing the defender from the claim for damages.

Mowat, in a petition to the Court, after pointing out the particulars of the proof, by which he considered it to be ascertained that actual and specific damage had been suffered, endeavoured to obviate an argument which had been used on the other side in the previous proceedings, and which has occasioned this case to be reported. It had been maintained, that it was entirely incompetent to pursue an action of this kind before the Court of Session, as whatever right was now claimed by the pursuer of the declarator must be founded solely on the statutes establishing the general privileges in question; but as actions upon these statutes are declared to be competent by bill, plaint, or information in any of his Majesty's Courts of Record at Westminster, or of the Court of Exchequer in Scotland, it must be incompetent to sue upon them in any other Court.

The answer to this was, that the clause directing the competent courts regards only actions for recovery of the penalties—whereas the action at issue was of a nature entirely different. It was a declarator of right, and a claim of damages, which must be competent to the Court of Session. If the action had been for the penalties, of which one half falls to the share of the Crown, it would have been competent only before the Court of Exchequer.

The Court sustained the competency, and found damages and expenses due.

Lord Ordinary, Kennet. For Mowat, A. Tytler. For Bruce Stewart, R. M'Queen.