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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gray v Syme [1835] CA 13_1089 (9 July 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1089.html
Cite as: [1835] CA 13_1089
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SCOTTISH_Shaw_Court_of_Session
Page: 1089↓
v.
Subject_Fishing—Process—Interdict.—
1. Interdict granted against parties fishing for salmon by means of nets having the one end fastened to the shore and the other fixed by a mooring in the water, or by any other mode than the ordinary way by net and coble. 2. An interdict having been granted by the Lord Ordinary on the Bills, prohibiting in general terms the use of fixed machinery in fishing for salmon, and letters of suspension having been expede, and the cause prepared for trial before a jury—held, that a more definite interdict, with reference to the particular mode of fishing adopted by the respondents, might competently be granted.
In June, 1834, Lord Gray and other proprietors of salmon-fishings in the Tay applied, by bill of suspension and interdict, to have Thomas Sime and William Johnstone, tacksmen of some of the lower fishings, prohibited from using sole-nets, poke-nets, or any fixed machinery for catching salmon, or any other mode of fishing than the ordinary way by net and coble. The Lord Ordinary granted an interim interdict as craved, but afterwards, on passing the bill, his Lordship partially recalled this interdict, and prohibited the respondents in general terms “from using any fixed machinery for catching salmon, or any other mode of fishing than the ordinary way by net and coble,” adding at the same time the subjoined note. *
Letters of suspension were expede, and a record made up, in which the respondents admitted that they used a net, one end of which was fixed to the shore, and the other moored in the water, but which, as they alleged, had no poke nor bag to entrap the fish, and was drawn every tide. The cause having been remitted to the jury-roll to have an issue prepared, the suspenders, without going to trial, had the cause returned to the Lord Ordinary, and (without prejudice to the interdict already granted, which they alleged had been entirely disregarded in consequence of the general terms in which it was expressed) applied for a
_________________ Footnote _________________
* “This is the course which appears to have been followed in all the recent cases, and till it be ascertained by the verdict of a jury, or some other competent mode of probation, whether fishing by sole-nets is fishing by fixed machinery, or only a variety of fishing by net and coble, it would evidently be premature to grant any interdict against the use of such nets, eo nomine. To avoid evasions by a mere change of name, perhaps the better way would be to raise an issue on a complaint for breach of interdict, and take a verdict whether the particular mode of fishing complained of, and proved to be actually practised, by whatever name it was called, fell within the fair meaning of that interdict.”
The respondents maintained, that there was no change of circumstances since the former interdict was granted; that the application for a special interdict at this stage of the cause was incompetent; and that the Court had never before granted such an interdict as that now asked.
The Lord Ordinary reported the cause on minutes of debate, appending to his interlocutor the note subjoined. *
_________________ Footnote _________________
* “The Lord Ordinary is not of opinion that the application for a more special interdict is incompetent, or that he would be reviewing or altering his former interlocutor in the Bill-Chamber by granting it. The Bill-Chamber is, quoad hoc, a separate Court, and its preparatory functions were concluded by expeding the letters of suspension; and the cause being now in the Court of Session, on the expede letters, it is conceived to be clearly competent to grant (or to recal) any interdict which the justice of the case may require. That there has been no change of circumstances since the general interdict was granted, may be a good reason for refusing the application on its merits, but does not affect its competency.
“On the merits, the Lord Ordinary is rather inclined to grant the special interdict suggested;—not, however, by a mere reference to articles six and seven of the reasons, which he thinks would be too vague and comprehensive, but in some such terms as are mentioned immediately after in the minute, or, in substance, against using any net stented and fixed in the water, during the whole time of fishing, and used merely to obstruct or decoy the fish, as a permanent or stationary bulwark, and not to catch or drag them ashore by being hauled or drawn to the bank. Such a net, he humbly thinks, comes so clearly within the description of ‘fixed machinery,’ and is so little like ‘the ordinary way of fishing by net and coble,’ that he does not see what fair interest a party who has submitted to the more general interdict has to oppose this farther specification, and more especially a party who, like the respondent, positively denies that he ever does fish with nets so fixed and stented.
“As the Court, however, has, for a considerable time back, declined to grant any other interdict than the more general one which is now in force between those parties, the Lord Ordinary is unwilling, on his own authority, in any respect to vary the terms of the deliverance, and has, therefore, reported the case, that their Lordships may settle the matter by their superior authority.
“If this more special interdict is granted, the suspenders have intimated their purpose to proceed no farther with the case, which, even after a verdict in their favour, could only issue in some interdict of the same description; and, if they are entitled to this now, they have a clear, and, the Lord Ordinary thinks, a fair interest, to avoid the expense and delay of a trial.”
1 Duke of Atholl v. Maule and Others, March 7, 1812, (F. C.) Affirmed on Appeal, June 16, 1816, 5a Dow, 282. The nets above alluded to by his Lordship have been variously termed stent nets, toot-nets, stage-nets, triangle-nets, poke-nets, sole-nets, but resemble each other in this essential particular, that, during the time of fishing, they all have one end fixed by some mooring in the water. See Bill-Chamber proceedings (unreported), referred to in the revised reasons of suspension and answers in the present case, and Duke of Atholl v. Wedderburn, December 16, 1826 (ante, V. 153).
The Court accordingly granted an interdict in the following terms;—“The Lords having, on report of Lord Jeffrey, advised this process of suspension and interdict, and heard counsel for the parties, prohibit, interdict, and discharge the respondents, Thomas Sime and William Johnston, from fishing by means of nets stretched or stented in the river Tay, having the one end made fast to the shore, and the other fixed by a mooring in the water, and remaining stationary in the water, so as to obstruct the passage of the salmon, and force or decoy them into courts or enclosures of netting, within which they are caught; and farther, interdict and prohibit the respondents from using any fixed machinery for catching salmon, or any other mode of fishing than the ordinary mode by net and coble, and decern accordingly; allow this decree prohibitory to go out and be extracted ad interim, to the effect that all due execution may pass thereon as effeirs; quoad ultra, reserve all question of expenses, and remit to the Lord Ordinary to proceed in the cause as to his Lordship may seem just.”
Solicitors: Bowie & Campbell, W. S.— W. Martin, S. S. C.—Agents.