Scottish Court of Session Decisions

James Hamilton of Barns was proprietor of the lands of Cochno and others, in Dumbartonshire, lying immediately above the lands of William Dunn of Duntocher, which stretched from Cochno down to the Clyde. A stream called the East Cochno, or East burn, flowed through the lands of Hamilton, and was thereafter joined, soon after entering the lands of Dunn, by a considerably larger stream called the West Cochno or West burn. The united stream, called the Duntocher, or Dalmuir burn, then flowed down to the Clyde, with a pretty rapid descent, and was applied to various manufacturing purposes. On the banks of the East burn, and within Hamilton's lands, there was a work, used as a printfield or dyework, in the occupancy of James M'Donald and Hugh M'Kay, carrying on business as Turkey-red dyers, and calico-printers, under the firm of M'Donald and M'Kay. Among other stuffs employed by them, the quantity of madder was very great. It amounted in 1827 to 310 cwts.; in 1828, to 774 cwts.; and in 1829 to 1832 cwts,, which was nearly as large as in any subsequent year. This work stood at a distance of from two and a half to three miles above the paper works of Dalmuir, of which Edward Collins was the tenant, and which were situated on the bank of the Duntocher or Dalmuir burn, and on the property of Dunn. There were two paper-mills, an upper and a lower, both in the occupation of Collins. At the upper mill, it was only paper of an inferior quality which was made; at the lower mill, fine paper was made. Near these mills, and between them, were two other mills, also in the occupancy of Collins, which he used for the purpose of chipping, rasping, or grinding camwood, barwood, and other woods for dyeing. But he did not himself carry on any dyeing process, excepting when he used logwood or fustic in making paper at his upper paper-mill, which was only seldom, and in small quantities: or when he made blot paper at his lower mill, as to which, as well as in regard to the blue paper, it was sworn by his servants that none of the stuff used for them could communicate with the white paper or its water. Between the dyework of M'Donald and M'Kay, and the paper works of Collins, were situated several public works along the stream, and in particular, a forge-mill, a small dye-work occupied by one Smith, a clay-mill, a grain-mill, and five extensive cotton-mills. Of these works the highest on the stream was the forge-mill, called Mar's forge. The highest of the cotton-mills was the Faifley mill. Besides all these public works, there was a large village situated on the bank of the stream. There was a gas-work in the vicinity, used for lighting the mills. The village, and the whole works (excepting the small dyework which was on the property of Lord Blantyre, an adjacent heritor, on the opposite side of the stream), were on the property of Dunn, the landlord of Collins.

M'Donald and M'Kay acquired right to their premises in 1826 under a sab-lease from Archibald Arthur, of a tack for nineteen years, which Arthur had obtained in 1822, from Hamilton's father, now deceased. Arthur had not carried on any dyeing operations, but such were commenced by M'Donald and M'Kay immediately on their entry to possession. In December, 1833, Collins took a formal notarial protest against M'Donald and M'Kay, alleging that they polluted the stream, and were liable to him in damages. In September, 1834, Collins raised an action of damages against M'Donald and M'Kay, and also against Hamilton the landlord, and Arthur the principal tenant of the dyeworks, alleging that, since 1826, downwards, there had been a quantity of madder or other dye-stuff discharged into the East Cochno burn from their dye-works, which injured the quality of the water so much, that, even after mixing with the West burn and flowing down to his paper-mills, it rendered the paper made by him either wholly unsaleable, or at least of very inferior quality, and thereby greatly hurt his trade. The damages were laid at £10,000.

M'Donald and M'Kay alleged, inter alia, that they had been at great expense in constructing settling ponds, &c. by means of which the water of the East burn was freed of its chief impurities before being returned into the stream; and that their work was not injurious to the paper-mills, because both of the distance between them, and of the junction of the East burn with another and larger stream; and also because of the numerous public works situated along the stream, and the populous village on its banks, from all which intervening causes the stream was so liable to pollution, that, even if the water, at the paper-works, was impure, it was impossible to trace the source of any of that impurity to their dye-works. In their defences they stated that it was only in dry weather “that the water becomes materially tinged by the colouring stuff from their work.” And on the record they admitted that the colouring matter “does occasionally tinge the water to a considerable distance, especially in dry weather.”

The existence of the two mills of Collins for dye-woods was not stated on the record.

The landlord, Hamilton, and the principal tenant, Arthur, pleaded, that as they had respectively granted the lease and sub-lease, in the lawful exercise of their rights as landlord and tenant, and had not authorized any illegal use to be made of the stream, they could not be made liable even if it were proved that M'Donald and M'Kay had made such illegal use of the stream, which, however, the defenders Hamilton and Arthur did not admit to be the case.

The following issues went to trial:—

“It being admitted that the pursuer is a paper-maker, on the Dalmuir or Duntocher Burn, and that one of the streams which unite to form the said burn, passes from the Cochno Loch through the property of the defender, James Hamilton.

“It being also admitted, that on the said property there are certain premises and buildings erected thereon, let by the predecessors of the defender, James Hamilton, of which the defender Arthur is or was tenant, and the defenders, M'Donald and M'Kay, are sub-tenants.

“1st, Whether, during the year 1826, and subsequently, or during any part of the said period, the defenders, M'Donald and M'Kay, did, by certain operations carried on in the said premises and buildings, wrongfully pollute and spoil the water of the said burn, so as to injure the quality of the water of the same, to the nuisance of the pursuer, as a paper-maker aforesaid, and to the loss, injury, and damage of the pursuer?

“2d, Whether the said operations so carried on by the defenders, M'Donald and M'Kay, to the loss, injury, and damage of the pursuer, were, in whole or in part, wrongfully authorized by the defenders, James Hamilton, or his predecessors, and Archibald Arthur, or either of them? Damages laid at £10,000.”

The case first came on for trial at Glasgow, at the Autumn Circuit, 1836, but, after it had been proceeded in for a day, it was broken off by the illness of the presiding judge. It was afterwards tried at Glasgow, before Lord Cockburn and a special jury, in April, 1837, and it occupied the Court for five successive days. Besides some documentary evidence adduced by the pursuer, plans were produced, one of which had been prepared under a remit from the Court to Mr Jardine, for exhibiting the state of the dye-works of M'Donald and M'Kay, and their filtering ponds, and the course of the stream, with the several public works on it, down to the pursuer's paper-mills. The pursuer also produced specimens of the paper made at his lower mill, which were low-coloured, ^* and marked with spots, in consequence, as he alleged, of the adulteration of the water by the dye-works of M'Donald and M'Kay. The chief part of the specimens of spotted paper, especially so far as regarded the proof adduced by the pursuer, were produced at one making of paper in December, 1833.

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* Paper is termed, in the trade, “low-coloured,” when deficient in purity and whiteness.

In leading his parole evidence ^* the pursuer called the following witnesses:—1st. Daniel M'Kain, manager of the Cranstonhill Water-works, Glasgow. This witness was examined as to the state of the defenders' dye-works, and of the stream, which he had inspected; the sufficiency of their settling ponds or filters, and their precautions for preserving the stream from pollution; the state of the stream as to its being impregnated with madder, discoloured, &c., from the defenders' works downwards; the existence of any other sources of impurity, arising from any of the intervening public works, from the vicinity of the village to the stream, from the fact of there being several iron springs which opened into the stream, &c. In regard to the pursuer's two chipping and grinding-mills for dye-woods, he deponed, “there is no impure discharge from them to the paper-mills. The place is boxed in, and no dust can escape, and the woods are ground in close boxes, to prevent their mixing. The water-driven chipping-mill, being the upper one, has the water that drives it let in to the lower one. The water is used at the chipping-mill solely for driving the wheel. The wheel is closed over, and the water flows through, without going into any of the houses. The water is not changed by going through the chipping-mills. It is the same after as before.” He also deponed that he saw some madder dug up from the dam at Faifley mill, and put into boxes, one of which he gave to Dr Thomson, Professor of Chemistry in the University of Glasgow, and that he had taken a sample of the burn, at Mar's Forge, which he gave to Dr Thomson.—2. Anwick Smith, paper-maker, Durham. This witness was asked as to the condition of the stream, which he had repeatedly examined, and the injury done to it by M'Donald and M'Kay's works; the effect of tinged Water in producing “low-coloured” paper, and the inferior price of such paper in the market; the fact of there being red and yellow spots in various specimens of paper made by the pursuer, and the injury thereby occasioned to the price of such paper; the high character of the pursuer as a paper-maker prior to 1826, &c.—3. Robert Weir, stationer, Glasgow, and formerly paper-maker. He was examined as to the pursuer's high character as a paper-maker formerly; the fact of his (witness) complaining of red or yellow spots in pursuer's paper as far back as ten or twelve years ago; the injury done by these spots to the quality and price of the paper; the quality of the water in the stream (which he had inspected) as affected by the defenders' works, &c.—4.— Peebles, manager of Dalsholm paper-mill: similarly examined as to the condition of the burn, which he had inspected, and its effects on the pursuer's paper, &c.—5.— Boyd, overseer of William Dunn at Duntocher, examined as to the condition of the stream as affected by the defenders' works, &c.—6. Professor Thomson, who deponed, “I know the process of paper-making. Pure water is essential for fine. About July, 1834, I saw the paper in pursuer's mill. It had red spots. I got some specimens of the paper; I examined them and found they were produced by the madder. I took some specimens of the water from the burn, and I went up to the defenders' works. In going up I saw large quantities of the madder on the sides of the burn. I saw these below the junction of the burns. The burn is affected between this and Dalmuir, but not so much as before the junction; there, i. e. before, it was extremely red. I took some samples from between the defenders' works and Mr Dunn's. The water there was very brown; it was full of a dye-stuff in suspension. Next sample was taken from just below the junction of the West and Cochno Burn. The colour was still brown but less deep. I found that in the sample of the deepest colour, there were 11 grains of madder in the gallon; in the other there were 3 1 2 grains in a gallon. Many substances dye red besides the madder, but nne has the same colouring principle. I have written on dye-colouring. In turkey-red colouring, the madder is boiled. Oil is used during the process of turkey-red dyeing. Nothing but the madder would have produced these spots. I marked the specimens from which I cut the spots, and which I examined. (He identifies No. 122 of process as one, and recognises the spots.) It is the red spots that are madder. The yellow may be so, but I can't say they are. An imperfect soap is used in the process. The first time I saw the defenders' works in 1834 there was no division across the pond. Smith's work is a work which does no work. I examined Mr Dunn's various works. I certainly saw nothing along the whole stream that could produce these spots except the defenders' works. The gas-work has no connexion with the stream. There are many iron springs, but not such as to affect the paper. I tried experimentally, and found no iron in the paper. There is no possibility of any escape from pursuer's grinding-mill. I tried to discharge the yellow spot, but did not succeed; but I diminished the colour by alcohol. I got a scaled box from Mr M'Kain, containing some faded leaves, &c.; half of its contents was madder. I also got last autumn a phial from him; I took a note at the same time of these words on the phial, viz. '22d Augt., No. 4.' My note adds,—' Identified by Mr M'Kain.' It looked clear, with flakes. I examined it, and found that it showed 4 1 2 grains per gallon. The phial was very small. The madder contains six colours, of which three are useless to dyers. I can't say whether the whole of the red is exhausted; but there is a brownish red that is not. The colouring matter is not exhausted. Some yellow colours are very fast; some are not. Yellow cloth is less affected by impurity than any other colour; all the red spots are madder; (he shows them on a sheet of paper.)

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* In reference to the pleas afterwards maintained by the parties, and the view taken by the Court, a brief notice is given of the topics on which the witnesses on both sides were examined, along with a full note of the depositions of the scientific witnesses, taken from the statement in a Bill of Exceptions for the pursuer, not ultimately proceeded with, and which formed the only information before the Court as to the proceedings at the trial.

“Cross-examined for Tenants.—The quantities I found were solid madder in suspension, in the samples taken by myself. I examined the phial the day after I got it from Mr M'Kain, I had seen it before, and it looked pretty clear, but this was only in the bad light I had when I first saw it, which, I think, was in Court. Next day, in a better light, I saw that some of the floating madder had subsided. The unused madder colours are the orange, the brown, and the purple, and possibly the yellow. I don't know the effect of the chemical agents in detecting the yellow.

“Re-examined.—The Turkey-red process first was introduced about 1796 or 7.

“By Juryman.—The madder I found was all held in mechanical suspension. I am not aware that any filter will entirely keep back all the particles suspended. I am not aware that any attempt has been made at large public works completely to free water impregnated with madder from its effects. I think it impossible. The madder in a burn from a dye-work will corrupt all the lower works, if they require pure water. There are other dyeing materials besides the madder, that will injure the purity of the stream; also many of those are used at print-fields. Yet it is not usual to try to purify the water from the printing impurities. I know no other place, except at defenders', where there is any attempt to purify the dye-works of their refuse. The madder subsides by degrees, as in Cochno, where tons of it are seen lying on the sides. It does not subside by the time it gets to Collins'. In a settling-pond it will putrify, and then rise again.

“By Court—It is possible, by filtration, to free the water entirely of the madder held in suspension; but this would be expensive, and it would require to be often renewed.

“For Pursuer.—The defenders' pond, when I first saw it, was not a filtering-pond at all.

“By Juryman.—By M'Kain's measurement, the madder is the fifth part of the whole stream above the junction; but it is less after the junction.”

7.— Graham, Professor of Chemistry in the Andersonian Institution of Glasgow, who deponed:—“Chemistry is my profession. I examined Cochno burn about three years ago. I saw much paper at the pursuer's mill. I saw sheets in nearly every quire with red and yellow spots. I found chemically the red to be madder. I concluded this as much so as any chemical fact could be ascertained. I detected some greasy matter also, proving an imperfect soap to have been there. I found depositions of madder-roots along the stream, wherever there was an eddy; there was a visible tinge of the colour after the junction of the two burns. At Dalmuir, it was not fit for any manufacturing process without filtration. The colouring matter of madder is not exhausted. A premium has been offered for exhausting it by a foreign society. Sand filters will in general separate the madder in suspension, but it won't do so always. I found a work in Lancashire, where good filters send out the water coloured and with suspended fibres quite visible. To be absolutely certain in all circumstances, the filtration must be very fine. I know the woods used at pursuer's grinding-mill. Particles of the dye-wood won't account for these red spots. (He is shown No. 128 of process, with some spots cut out). They were cut out by me for an experiment, and the result was found as above.”

8 and 9. The Son, and the Assistant of Dr Thomson, who, it was admitted, would corroborate him.—10.— Thom, engineer of Shaws Water, Greenock; examined as to the condition of the stream which he had inspected; the sufficiency of the defenders' settling ponds or filters; the fact of their being any other work, but the defenders', along the stream, from which a discharge came that would discolour the water; the state of the filters used by the pursuer at his own paper works; the possibility of carrying on the defenders' works profitably, yet so as to protect the lower works from impure water, &c.—11. Charles Cowan, paper-maker Pennycuik; examined as to condition of stream, fitness for paper, injury to defender's works, &c.—12. Alexander Annandale, paper-maker, Polton; examined as to condition of stream which he had inspected; injury of red spots to paper, &c.—13. Charles Black, bookseller in Edinburgh; examined as to his having begun to take paper for the Encyclopædia Britannica from the pursuer, in 1828 and soon after, having had to complain to the pursuer of little brilliant red and brown spots in the paper; as to his having, on one occasion, in 1833, left the pursuer on that account, but having since returned to him, and continued with him, &c.—14. George Laing, paper-maker, Balerno; examined as to the former character of the pursuer as a paper-maker, and its not being so high now; his paper having been injured by spots, &c.—15.— Gray, paper-maker, Manchester; examined on subjects similar to Charles Cowan, along with whom he had inspected the stream—16.— Magnay, stationer, London, and paper-maker, who dealt largely with the pursuer in paper; examined as to the inferior quality of the pursuer's paper for some years past; its being of a lower and mixed colour, and very foul; its having occasionally spots on it, all of a yellow colour; as to his withholding extensive orders owing to the badness of the paper; as to the excellent state of the filters at the pursuer's works; the state of the stream (which he had inspected) as injurious to paper, &c.—17. Benjamin Tipper, stationer, London; examined as to his having sold the pursuer's paper in London in 1829 and 1830; the lowness of colour of the paper, and spots on it, generally red spots; the injury thus occasioned to the quality of the paper, amounting to from 5 to 25 per cent on the price; the unsaleableness of the paper; the deponent's consequently giving up the pursuer's paper, till 1834, when he again tried it, and finally gave it up, finding it no better; as to the loss of sale, to the extent of from £3000 to £5000 a-year, thereby occasioned to the pursuer, &c.—18. William Batty, sta tioner, London; examined as to high character of pursuer, 10 or 12 years ago, as a paper-maker; its subsequent falling off; the yellow and red spots on the paper, and its low colour, being the cause of this, &c.—19. James Dickson, stationer, Edinburgh, who had long dealt with the pursuer; examined as to the inferiority of the pursuer's paper of late years, especially as to irregularity and lowness of colour; as to his having complained of it by letter in October, 1834, &c.—20 and 21. David Boyd and— Reid, stationers, Glasgow; examined on similar topics with other stationers.—22, 23, and 24. Three persons examined as to the state of the stream, in point of purity, before defenders' works were in operation.—25. James Smith, tenant of the small dye-work, intervening between the works of M'Donald and M'Kay, and the paper-mill of the pursuer; examined as to his using no turkey-red at his works, and very little madder, and, generally, as to his not polluting the stream, &c.—26 and 27. Two accountants, who inspected the books of the pursuer and of the defenders, and drew up states as to the amount of paper made by the pursuer; the falling off in price; the quantity of materials, including madder, used at the defenders' dye-works, &c.—28. A supervisor of excise, to prove the amount of duty (£31,781) paid by the pursuer on his paper since March, 1832.—29. A merchant who sold rags to the pursuer to make paper, and deponed they were good.—30. Cuthbert Nairn, foreman of the pursuer's lower paper-mill; examined as to the extent of the pursuer's work; the recent improvements on his machinery and in the bleaching of the paper-pulp; the state of his filters, as to which the witness deponed that both the stream and filtered water were used by the pursuer, one-fifth of the whole water used being filtered; he was also examined as to the care and skill employed in making the paper; the effect of colour, when occurring, in the stream, as tinging the paper-pulp, and causing low-coloured paper, since the defenders' works came there, &c. He deponed, that he had seen madder in the pursuer's “water cistern which takes the water to the lower dam. There are flannel bags at the cocks of the engines, to keep back the particles. I have seen the madder there, and I have taken it out of the bags; it was of a blackish colour, and purplish, and in such quantities that I had no doubts of its being madder. The bags are only three or four inches square, and are changed hourly. The pulp should be purest after being washed subsequent to bleaching; and I have seen this tinge at this stage. There is no colouring matter in our size. I have seen the spots on our paper red and yellow, besides the lowness of the colour. These spots occurred at the time when the burn was very bad, and when I saw the madder. There were spots in whole makings of the paper. I thought they were caused by the water and the dye-stuffs. The pursuer has grinding and chipping-mills. The greatest care is taken to prevent any particles of these getting into the water. Woodhouse is foreman of them. They were there before I went. An accident happened to them in the end of February, 1836. There were some Edinburgh gentlemen there then. Some dust got into the water by accident, from the mills being under repair. Notice was given us of this, and the works were stopped, and the dust was all washed off the wheels. A part of the roof of the grinding-mill had been taken off. This never happened except then. The water is taken to the upper mill in pipes; and after being used, it goes by roans direct into the back burn, and so into the Clyde, without going into the lower works; below the level of which it is.” He was also examined as to the condition of the stream; and the deteriorated quality of specimens of paper made at the work and produced in Court, &c.—31 and 32. The clerk of the pursuer's lower paper-mill, and of his warehouse in Glasgow; examined as to the books of the pursuer, showing the makings and sales of his paper, for several years; the existence of red spots, &c. on the paper, and the loss of price in selling it, &c.—33. George Robertson, engine-man at pursuer's lower paper-mill; examined as to the discolouration of the stream reaching to the cocks of the engines, &c.—34. William Woodhouse, foreman of the pursuer's chipping and grinding-mills; examined as to his having remonstrated with the defenders about the stuff from their works, in the year 1832, and often since; as to the state of the defenders’ settling-pond and of the stream, &c. He deponed, inter alia,—”There is no madder used or ground at the pursuer's works. He gets a great part of his wood from his employers by the weight, which he chips or grinds for them, and he is bound to redeliver the same weight, subject to an allowance of 2 lb. per cwt. on the chip-wood, and of 5 lb. per cwt. on the rasped. The ground-wood is ‘raised’ in the operation by the addition of water, for which we are obliged to give 5 lb. per cwt. more. The wood is moistened when it is ground, and so there is little dust. Stones are often sticking to the wood, and sand, and splinters that won't work, and bits of rotten wood that are thrown aside. The sap of the wood evaporates naturally, and it is for these that the allowance for waste is made. There is no waste nor refuse let into the dam, or any part of the water, or into the dunghill. It is kept by itself and carried away. The refuse is kept about 20 or 30 yards off from the nearest part of the water that goes down to the low mill. The slope between the refuse and this water is upwards to the water, so that any of it oozing from the waste must flow away from the water. There are a good deal of sandy particles mixed with the waste. The waste is heavy,—it is chiefly sand and small splinters, and I never saw it blowing about. The water used in raising the wood is absorbed in the process. It is brought in, in a water-pan, and poured over the wood as over clothes, and pressed into the wood by a heavy pressure. This water is in a hollow apartment, and what is not absorbed can't run out. What is ground is at first moist. The rooms in which the chipping and grinding go on are quite close. There is no escape of dust. We would lose the wood in so far as it escaped in dust. The ground-work is dried in a lot. There are windows only on one side of the loft, and there is no draft. The object and rule is to prevent the escape of ground particles; and every care is taken against it. At one period, viz. in February or March, 1836, we were making great alterations in the works, and part of the tiles of the grinding and chipping-house were off; and seeing it impossible to be helped, we allowed a considerable quantity of rasped wood to escape. I sent notice to manager of low mill. The sluices below were stopped, and the stuff was run into our bye-wash, and so away. The alteration took us from the beginning of January to the beginning of March. During this period the dust escaped necessarily; but this was only an accident, and it only happened at that time. I saw a gentleman there then, on the 22d of February I think; it was said to be Dr Gregory. There was a considerable fall of rain the day before.”

On cross-examination for M'Donald and M'Kay, he stated “The chipping-mill driven by water is close to the high dam; and probably about thirty yards from the low dam. It is just the lade water from the high to the low dam which drives the chipping-mill. The lade is open, except where it is covered by a bridge. The drying-house is a separate building of two stories; on one side both the stories are used for drying; on the other side, only the upper storey. There are two entries to these three places; one to the lower, and one to the two upper. They have been used for drying about twelve years. We had no drying till then, for we did not grind till then. There is a door on the side of the grind-ing-mill, next the high dam; and the water is brought from the high dam by a pipe. We grind and chip logwood, fustic, nicaragua, lima, camwood, barrwood, sapan, ebony, and whatever is sent us, Brazil wood. When I examined the defenders' ponds in December, 1833, there had been a very heavy flood the day before. The repairs were only going on on one part of the work, viz., the work situated at the west end of the water-wheel. This part was previously a rasp-mill, and we wanted to make it both rasp and chip. It was from this that the tiles were off. We ground during this alteration, for the grinding-mills were in a distinct part of the work; and they were not touched, nor the drying houses. The dust only got in as before stated to our water once; I can't tell the day; but it was not the day on which Dr Gregory or any of the gentlemen were there. This escape was towards the latter end of our repairs. I can't say whether it was end of February or beginning of March, but it was before Baird was there. We kept on rasping occasionally during the operations. Our unwrought woods were kept partly out of doors, neatly piled up. (He shows the place where they were piled upon the plan; and these were shown to jury.) The windows of the two-storied drying-house are on the east side; those of the other one look west. The east is towards the high dam. The east is glazed, the west wooden. I know no reason why the allowance for rasping is greater than for chipping, except the custom of trade. There is no greater waste.

“Re-examined.—The piled wood is in logs.

“By a Juror.—The rain that falls on the piled wood flows partly into the low dam from one of the piles.

“By another Juror.—No wood but logwood gives out the colour from rain, and this only sometimes. The colour is purple, and a very small quantity of dye comes away, and even this only from new wood.”

35. George Montgomery, foreman of pursuer's upper paper-mill, examined as to the fact of the upper mill, which was driven by steam, being so conducted as not to injure the water of the lower mill.—36. Robert Harvey, land-surveyor, examined as to the quantity of water discharged by the Cochno or East burn, the West burn, &c.

The defenders, M'Donald and M'Kay, adduced the following witnesses:—1.— M'Quisten, a land-surveyor, who had been employed for two or three months in making the survey for the plan under the remit from the Court to Mr Jardine, was examined as to the size and condition of the stream; the point below the defenders' works, and above the pursuer's, where he alleged that the defenders' operations ceased to have any effect on the stream; the other sources of pollution intervening between their works and the pursuer's paper-mills, &c. He deponed, inter alia, that he saw powder from the pursuer's grinding-mill for dyewoods, lying about the doors of the grinding-mill, near the race between the pursuer's two dams, and that he “saw this powder repeatedly.”—2. Dr Christison, professor in the University of Edinburgh. He deponed as follows:—“I visited the defenders' works on the 27th of February and the 24th of September, 1836, and all the stream, down to Dalmuir. My object was to ascertain the purity of the burn. On both the occasions the matter was discharging from the defenders' works, but far less at the first than at the second time. On the second time, when the discharge was great, there was a great discolour in the vicinity of the works. It became fainter as we went down, till it totally ceased, even in appearance, at the upper Faifley dam; and though there was an apparent discolour till then, it was only apparent, and from the natural colour of the bed. It was not even apparent below this. I took samples from various parts on my first visit. I took one above the defenders' works, then a second, eighty yards below where the cess-pool joins the burn, then a third from the upper Faifley dam. The result of analyzing these was,—

“1. A gradual increase of saline matter, as we descend the stream, from fourteen thousandth part, as above the defenders' works, to 900 at Faifley.

“2. A slight increase of insoluble coarse matters.

“3. When these last are allowed to subside, there is no visible difference in the colour between the three samples.

“4. The slightest possible increase of the dissolved colouring matter.

“5. No difference in the taste; I know the madder well. At my second visit I looked at the water, and saw certain experiments made up with the paper pulp. I could see no appearance even of colouring matter below Faifley. Mr Brown of Cockmill had some pulp; it was in the highest conceivable state of whiteness, and very absorbent of the colour consequently. The water above the works gave it a very slight, but still a perceptible tint. Below the works the water was so full of coarse madder, that it required to be filtered, which was done very coarsely; it then discoloured the pulp very slightly, and it was quite identical in intensity with that produced by the water taken from above. I have examined the process of paper-making carefully; there is no burn water whatever can be used throughout the year for making it, and I doubt if it can be used well at any time. Ordinary filtration won't deprive the mossy water of its properties. Even when filtered, the mossy water won't make the finest paper; and I know one maker who has it at his door, but he prefers bringing other water. in a pipe, a mile. The spring water is always preferred to the stream, even when filtered. In making the turkey-red, the madder is boiled, and its red colour is very effectually exhausted at the defenders' works. It certainly will yield no more colour by the cold water; and even by the strongest possible chemical agent I could only produce a very slight pale yellow colour. I could produce no madder colour by the cold water, from any of the madder got below the defenders' works. I saw other impurities coming into the burn, besides, from the defenders' works. I found the madder-refuse in the Faifley dam entirely exhausted of its colour. I found several iron-springs. At my second visit it rained heavily at Mar's Forge; upon which I saw impurities of every possible denomination swept into the stream in large quantities. At my first visit I saw the pursuer's grinding operations; I saw the red powder from them, lying about to a great extent, in reference to the injury likely to be done to the water, I saw it lying all about, and on the surface of the lower dam—and on the sluice of that dam—and floating down the mill-course which leads from that dam to the mill, and a little on the trough which lets the water down on the wheel, there was a very little; but I am certain I also saw the marks of a recent cleaning. The trough is only about six feet long. I saw very little—almost none—on the roof-tiles. I took some of this red stuff home and analyzed it, and found it was not madder; it was certainly not, but it was barr or camwood. I was refused admission to the grinding-mill and the paper-mill, both of which were going, at least I think so; but I am sure that the paper-mill was, while the dust was floating. (He is shown No. 114, 122, 128, and 118 of process.—They are all specimens of the paper.) I examined the red spots upon them chemically; they are not madder. I cut none of them out. They were subjected to chemical tests, both alkaline and acid; and I am satisfied they are not madder; they answer the characters of cam or barrwood, but there are so many red woods that I can't say positively that they are so; but they certainly are not madder. (He is shown No. 120 of process.) On the 8th and 9th leaf of it I see a blue stain; I think it is owing to the smalt employed to give it a blue tint. On the leaves 14, 15, 16, and 19, there are yellow stains. (He is shown No. 121 of process.) Throughout there are yellow spots, not from the madder. I can't conceive how the madder could produce such spots according to the ordinary processes of paper-making. Dr Gregory and I examined the spots together. (He is shown Nos. 113 and 116 of process, and 33, 34, and 35, being parts of the ream, No. 15.) They have all spots of the same kind as above. I can ascribe these spots to nothing that comes from the defenders' works; and even though they had been produced by the madder, I can't conceive how they could come from those works as they are conducted. Whatever produced these stains, it must have been a substance retaining almost all its original intensity. I think the state of the water and the other impurities are sufficient to explain the low colour though the defenders' works did not exist.

“Cross-examined.—My examination was made by the desire of the defenders' agent.

“Re-examined.—At my second visit, which was the day before the late trial here, I found every thing at the grinding-mill swept clean.

“By Court.—The pursuer required the authority from the Sheriff before he would let me in, or to see his agent.”

3. Dr Gregory, who deponed, “I am a lecturer on chemistry. I was once in Edinburgh, and am now in Dublin. I visited the Cochno twice, and examined the water thrice. My first visit was on 15th February, 1836; my second was on 3d June, 1836. I examined the water to try its purity very particularly. The defenders' works were going, and the discharge was running into the burn. It discoloured the burn for a very short distance downwards. At twenty yards down, I could see no colour. Between the works and the stream, I saw a large quantity of used madder. It had a dirty darkish purple colour. It was exhausted madder. We found some madder under the surface of the soil at Faifley, where it must have lain long. I took some samples of the water from various points below the defenders' works, going upwards. (1.) The first sample was taken just where the Dumbarton road crosses the bridge below the pursuer's dam; (2.) the second from the pursuer's reservoir of filtered water; (3.) the third was taken from a stream coming into the burn below the Duntocher mill; (4.) the fourth was taken below Hardgate mill after the junction with the West burn; (5.) the fifth was taken from Faifley dam; (6.) the sixth was taken from the small Cochno; (7.) the seventh was taken from the East burn, about 200 yards below the defenders' works; (8.) and the eighth was taken twenty yards below these works. I analyzed all these; the result was as follows, viz.—

“1. The water was not quite transparent, but soft. It contained dissolved vegetable matter; this, with the saline, was a fifth or a six thousandth part of its weight.

“2. It was in every respect the same, except that having been filtered it was transparent. It had the organic matter dissolved.

“3. Contained a small quantity of iron, and no organic matter whatever.

“4. It was just the same as the two first; it was burn water.

“5. The same as to organic, but it had rather less saline.

“6. A little harder and more organic matter than any of the former, but scarcely perceptible.

“7. Softer than any of the rest, but less of organic matter.

“8. The softest water I ever met with, and a smaller quantity of dissolved vegetable matter. There was no very decidedly less dissolved matter above Faifley Dam than below it. Any thing that came from the defenders' works would have been detected clearly at twenty yards below the works. All ordinary water contains vegetable matter. The spring sometimes does not. This dissolved vegetable matter was precisely the same as is in the Edinburgh and Glasgow waters. Hence I conclude, that there was no vegetable matter in those specimens which could hurt the pursuer's mill. On my second visit I took some samples from the same places, with the addition of the water from the West Burn. The West Burn water, on standing a while, deposited a sediment, and contained more dissolved vegetable matter than any of the others. I analyzed all these carefully, and this completely confirms my opinion that no matter came from the defenders' works which could hurt the pursuer. I got eight samples last week from Mr Anderson. I analyzed them very carefully; the last sample was numbered. Their general character was this, viz., the softest water was, from what I understood to be nearest the pursuer's works. And in each of the three examinations there was less vegetable matter between the defenders' works and Faifley, than below or in the West Burn above the junction. The water marked No. 2, which was taken from below the defenders' work, had very much less vegetable matter than No. 1, which was taken from above there. No. 4 is the hardest I ever saw, and there is no vegetable matter. I could detect no iron in the water, though there were signs of it on the sides of the burn, and at the dams. I saw the grinding-mill at the pursuer's at my first visit. I saw a large quantity of the powder and dust lying about. It was in every part of the mill, and the tiles sloping towards the upper dam, which I could see best, were covered with it. I saw it at the conduit above an inch thick, just below these tiles. It was every where on the ground between the grinding-mill and the low paper-mill, and on the sides of the lower dam. The pursuer's foreman showed us the filters; his hat, shoes, and clothes were covered with the red powder. I saw bar, cam and logwood. This was at my first visit. At my second visit I saw none of it on the roof, or on the sides of the conduit, but there was a considerable quantity between the upper dam and the filter, and I could still trace it on the sides of the lower dam and lead. It seemed to have been carefully cleaned away from the other places. The roof was as clean as if it had been put up that day. (He is shown the same specimens as were shown to Dr Chris-tison.) I tested them to detect the madder, and I am satisfied they are not. I have no doubt whatever that these spots are produced by the dye-woods,—probably it is barr or cam. (It was agreed that he should, quoad ultra, on this point, be held to agree with Dr Christison.) I think it was impossible to exclude the red powder from the paper-mills.”

4.— Thomson, bleacher and printer, examined as to the state of the madder, discharged from the defenders' works whether exhausted of colouring matter, or not; as to the spots on the paper which was produced in Court, whether they came from madder, or some other cause; and whether they were produced in the paper while in the state of a pulp, or at a later stage when made into a sheet, &c. He deponed, inter alia, that he saw the powder from the pursuer's grinding-mill floating above the sluices, just before the trial in Autumn Circuit, 1836, immediately above the paper-mill—

5.— Anderson, engineer to the Glasgow Water Company, examined as to the size and condition of the stream which he had inspected, and as to samples which he had taken from it, &c.—6, 7, 8, 9. These witnesses were paper-makers, turkey-red dyers, or calico-printers, and were examined as to the condition of the stream which they had inspected; the effect of the defenders' works upon it, and of other sources of pollution below them; the precautions used by the defenders for protecting the stream from pollution, &c.—10. James Walkingshaw, paper-maker, Greenock, who deponed, “I was in company with the pursuer from 1825 to the end of December 1827 in the upper mill business; and I remained his tenant till January 1830. I chiefly made cartridge and packing; and scroll pot paper. There were no red spots at that upper mill; and if they had been there I would have seen them. The pursuer never complained of the defenders' works that I know of, or of being hurt by them. He only complained once, in 1825, of Mr Dunn letting down his gas.”—11. Nicol, who had been manager of the pursuer's upper paper-mill “from May, 1824, till the end of 1829. When the defenders' works began I was in the upper mill. He made coarse paper there, of various colours,—some pale. We were never injured by the defenders' works, I never observed the red stains; though, if they were there, they would have been seen on some of our coarse paper. I heard no complaints. When I was at the upper mill, I never was in the lower mill; and when in the low mill, I never saw the finishing, so I can't tell how the pulp was washed; but I believe it was either spring or filtered. There is no filtered water at the upper mill. I have seen the gas in the water. This was complained of, and stopped. I never saw any appearance of change in the water between 1824 and 1829, except what natural causes might occasion.”—12. Joseph Crichton, paper-maker, who deponed, “I was with the pursuer for 16 or 17 years prior to 1832. I was at Springfield, near Lasswade. I was in the pursuer's low mill,—the fine one. I never heard the pursuer complain of the defenders' dye-work. I heard him complain of the gas from Mr Dunn's, which was stopped. I can't tell the year. I have heard of the paper being iron moulded, but of no red spots. I never dream't that the defenders' works were doing us any harm.”—13.— Kerr, an accountant, who had examined the pursuer's books, which showed, that, taking every thing into account, from 1826 to 1836, they exhibited a profit rather increasing than otherwise.—14. A workman of the defenders as to the state of the burn, and the defenders' works at the time when the samples were taken by— Anderson, No. 5, of defenders' witnesses.

No evidence was led by the landlord or the principal tenant, who rested their defence on the plea already stated.

Lord Cockburn then charged the Jury to the following effect:—

Gentlemen of the Jury,—After this most protracted discussion I shall endeavour to bring my observations within as narrow a compass as is consistent with the duty I have to perform.

I shall take first the case of the sub-tenants under the first issue. The question there is, “Whether, during the year 1826, and subsequently, or during any part of the said period, the defenders M'Donald and M'Kay did, by certain operations carried on in the said premises and buildings, wrongfully pollute and spoil the water of the said burn, so as to injure the quality of the water of the same, to the nuisance of the pursuer as a paper-maker aforesaid, and to the loss, injury, and damage of the pursuer?” There may be works which would be held illegal, as nuisances, though no damage had actually been produced, as it may be certain that damage will be produced. On the other hand, things which are nuisances in their own nature, and are doing damage, may not be wrongful, because they may be protected by prescription, acquiescence, &c. Here we are free of all questions of that kind. The pursuer undertakes to prove loss by nuisance, and that it is wrongfully done. He must establish the three qualities of nuisance, damage, and wrong. If he do not prove damage, then I state to you, in point of law, that, in this action of damages, he is not entitled to a verdict. Again, if there be nuisance proved, the parties creating it must show, on their part, that it is not wrongfully done. The only defence here, against the alleged wrongfulness, is, that there is no nuisance; and the question is, whether the dye-work, as conducted, has, or has not, been productive of damage to the works below? What will be held a nuisance differs in different circumstances. In regard to rivers there are different cases, in which the results will be different. 1. The river may be a public river, or immemorially abandoned to public works; 2. It may be a private river, retained for the primary purposes to which water is applicable. These two cases are clear, as, in the one, scarcely any thing would be a nuisance; and, in the other, there is scarcely any thing which would not be a nuisance. 3. There is, however, an intermediate case, which, on the facts, you may consider to be that here occurring, where the stream has been partly appropriated to manufacturing purposes, and is, in part, applicable to the primary uses. Such a case is regulated by this rule, that no person is entitled to destroy, or materially impair, its fitness for manufactures previously existing, either by establishing a new process, or by carrying on one, already existing, to a greater extent than formerly. But, on the other hand, a party, complaining of being injured, is not entitled to increase his liability to injury, by giving up precautions previously used, or by neglecting to give warning to the party injuring him. It is always for the Jury to apply this rule. It is often of great difficulty to do so, but the rule can never be disregarded without violation of law, and infringement of private rights. Manufactories grow up under the protection of that rule, and it must inviolably be observed. It is for you alone to say, if, in point of fact, these defenders did create a nuisance.

On the facts of the case I shall make only a few observations, and I shall abstain from entering into details. Two opposite cases have been laid before you by the respective parties, and I shall now state each of them as shortly and generally as I can; in doing which you will understand, that, at present, I am not giving my own opinion at all, but merely presenting to you the cases of the pursuer and defenders, as they themselves give them.

The pursuer, in substance, says this. There is unquestionably a great discharge of colouring matter from the defenders' dye-works, and the amount of it is large, especially in reference to the size of the stream receiving it. The defenders have no filters, as the banks at their works are not constructed on proper filtering principles. In the experiment tried by one of my witnesses, the pulp for paper, used by him, was tinged, not only immediately below the defenders' works, but at the pursuer's works; and the colour can be traced all the way down from the defenders' works to the intake of ray paper-mill. Along the descent of the stream, no other source of pollution exists which could possibly account for the effects produced by the water on the pulp. My paper-work had long existed, and the paper made there had possessed the highest possible character for excellence. But, about 1826, a new and extended mode of working was introduced into the previously existing bleachfield or printfield, occupied by the defenders M'Donald and M'Kay. About the same period the paper at my mills began to be stained with spots, and to suffer a farther injury of a much more serious kind, in the general lowering of the white colour of the paper. And as particles of madder are actually found sticking in the substance of the paper, there can be no difficulty in saying from what source the injury to the paper arises. The defenders use madder to a great extent at their dye-work, and scientific men have tested the substance which spotted the paper, and found it to be madder, and nothing else but madder.

That, Gentlemen of the Jury, is the case as put by the pursuer, and he contends that the injury done to his paper, is as clearly traced to the defenders' works, as if he had proved that logs of wood were seen launched from their premises down the stream, and were traced descending it until they struck a breast-work of the pursuer's, and damaged it.

If you believe all this, the defenders have certainly no case. But then they say they have also a case, which I shall now likewise state to you. They say this: As to the colour of the paper, high and low colour are merely relative terms. The water of the stream is in itself bad or inferior, and this occasions a lowering of the colour of the paper, independently of our dye-works. In support of this, we refer to the trial of the quality of the water, taken from above the defenders' works, by the witness Brown; and to the proof led, as to the fact that the West burn, which is by far the largest, is of a mossy quality, which is most injurious to the colour of the paper. Madder is certainly used at our dye-works, but it is not wantonly discharged by us into the stream. We use various important precautions against this; and it is only the refuse of the madder, after the colouring matter has been exhausted, which escapes into the stream. It is our trade to extract and exhaust the colour; and though science cannot exhaust it altogether, we still do this so completely, that, at least, no cold water will extract any thing more. And, besides, it is not a trifling rill, but a large stream which passes by the works of the pursuer. Dr Christison and Dr Gregory both swear, that when the dye-works were in full operation, the discolouration of the stream began to disappear at about 50 yards below the works, and that it was not discernible at the distance of 100 yards; and at Marr's forge, about half a mile below, the water was as pure as it was above the dye-works. Then both of these men of science analyzed the water taken from above the dye-works, and the pursuer's witness, Dr Thomson, did not do this. This analysis was a very important operation; and one of the results obtained by it was, that, at the distance of 200 yards below the dye-works, the water contained a smaller amount of vegetable matter than it did at any higher part of the stream. Then there are great impurities in the stream, above the pursuer's works, which arise from other sources than the dye-works; and the soil from the village is, of itself, enough to destroy the water for paper-making. Besides this, the pursuer has erected a grinding-mill for dye-woods, and this occurred about 12 years ago, which was just about the time that the injury to his paper is said by him to have begun. This grinding-mill is in the very heart of the paper works. And it is not true that the ground dust of the dye-woods can be perfectly kept within the grinding-mill, and prevented from all escape. That dust was seen in quantities, outside the grinding-mill, on one occasion, and even if this was owing to an accident, we do not know how often such an accident happens. It is enough for us that the grinding-mill has been put there by the pursuer, and is liable to accident. It cannot be believed that occasional escapes of the ground dust do not occur; and this explains the spots in the paper. As to the fact of madder getting into the stream at our dye-works, that is of no consequence unless it goes down to the paper-mills. It is true that Dr Thomson and Professor Graham say they found madder in the paper; but Dr Christison and Dr Gregory say directly the reverse, upon the responsibility of their professional characters and their oaths. Dr Gregory and Dr Christison both say that the spots in the paper answer the character of spots occasioned by camwood or barwood, which are two of the kinds of dye-woods ground at the pursuer's grinding-mill. And Dr Christison swears to another fact, that, whatever the spots may be, they are produced by a substance retaining all its original colour; and that the madder used at our dye-works is exhausted, for all practical purposes, so that he could extract no colouring matter from it by the strongest chemical agents which he could apply;—after all which, it still has to descend for a course of about three miles of the stream, before it can reach the paper-mills.

This is the case presented by the defenders M'Donald and M'Kay. And as the Dean of Faculty commented be much on Dr Christison's evidence on the last subject referred to, I shall now read over his evidence, so far as it relates to this subject, without remark. It is in these terms:—“In making the turkey-red, the madder is boiled, and its red colour is very effectually exhausted at the defenders works. It certainly will yield no more colour by the cold water; and, even by the strongest possible chemical agent, I could only produce a very slight pale yellow colour. I could produce no madder colour by the cold water, from any of the madder got below the defenders' works. I saw other impurities coming into the burn, besides from the defenders' works. I found the madder-refuse in the Faifley dam entirely exhausted of its colour.” And again, after stating that the red spots on the paper were subjected to chemical tests both alkaline and acid, and were not madder, Dr Christison says, “I can ascribe these spots to nothing that comes from the defenders' works; and even though they bad been produced by the madder, I can't conceive how they could come from those works as they are conducted. Whatever produced these stains, it must have been a substance retaining almost all its original intensity. I think the state of the water, and the other impurities, are sufficient to explain the low colour, though the defenders” works did not exist.”

These then, Gentlemen of the Jury, are the two opposite cases which are presented to you by the respective parties, and it is now for you to say, not which of the two you like the best, but which of the two is most warranted by the evidence. In regard to the view which I may have formed on the evidence, I would observe, that, while there are cases in which it is better for the Judge not to express his own opinion, there are others in which it is his duty to follow a different course. I consider the present as a case of this last description, and I shall therefore shortly state to you my opinion and the grounds of it.

In my opinion, then, the pursuer has not made out his case. It is necessary for bim to connect the evil with the cause. It is not enough for him to show that the defenders have works which may account for the injury. He demands damages for past injury which he alleges to have been done to him by the defenders, and he must show that the operations of the defenders have actually caused that injury.

The first thing to consider, is, whether we are sure that the pursuer himself is quite in the right. There was no pointed warning or complaint made by him prior to the protest in December, 1833, within ten months of raising the action, and he demands damages since 1826. Now I look upon his never making a complaint to the defenders, as a proof that he then thought the evil did not arise from their works. But, in a question of damages, is a party to be entitled to hold his tongue in this manner, and all the while score up a claim against his neighbour? I think that would not be equitable, and I would remark that it is very odd that the evil should have been going on for seven whole years, and that no protest should be taken until the action of damages was almost in a state of preparation.

Another thing to be considered, in reference to this part of the subject, is the fact of the pursuer's carrying on two inconsistent works; one of them being a mill for grinding dye-woods, which is situated in the very heart of the paper works. Besides this, it appears that he only filters about one-fifth part of the whole water which he uses at his works, and yet the purity of the water is every thing to him. I do not mean that any new burden can be laid on him by an upper heritor, of filtering to a greater extent than otherwise he had required to do; but it is impossible for us to shut our eyes to the growing pollutions from various sources which find their way into this stream; and it is altogether extravagant to say that the lowering of the colour is to be laid exclusively on the upper works of the defenders, when it is contributed to by all these sources together.

Again it occurs to me that, as the dye-work is constantly going on, if it were the cause of the injury to the paper, the paper would be constantly damaged, as the cause of it would be in constant operation. But in place of this, three of the witnesses swear that they never heard of the spots on the paper, and several persons, dealing largely with the pursuer, who must have been aware of this injury, if it were constant, never heard of it. I am therefore driven to suspect that the injury was not produced by any fixed cause, but by accidental escapes of the ground dust of dye-woods, from the pursuer's own grinding-mills.

There is another thing which makes a very strong impression on my mind: I allude to the evidence of the scientific witnesses. I dont put Dr Christison, the defenders' witness, above Dr Thomson the pursuer's witness; neither do I put Dr Thomson above Dr Christison. But it is stated by Dr Christison and Dr Gregory that the spots in the paper are caused by a matter retaining all its colouring intensity, while the stuff discharged from the dye-work is exhausted madder. Farther, these gentlemen analyzed the water, which Dr Thomson did not. According to the worst view for the defenders which I can take of their conflicting evidence, it is left a doubtful matter whether the spots in the paper are caused by madder or not. Now, even assuming this to be doubtful, as great chemists have given an opinion in one way, while great chemists also have given an opinion just the other way, what is to be the effect of this upon your verdict? What is the effect of a doubt being left? The pursuer is here seeking damages; the burden of proof lies on him; if, in place of completing a satisfactory proof, he only rears up a doubt, he has failed to make out his case, and his failure is enough for his opponent's defence. He does not insinuate that there has been any thing incorrect on the part of his adversary, or that the case has taken any sudden and unexpected turn. Both parties have had unusual means of preparation; they were both perfectly aware that there would be opposite scientific evidence; and both have met this as they thought proper; in particular each has brought out the testimony of his own witnesses, and sifted that of the witnesses against him, as much as a full knowledge of his own case made him think safe. In this situation the failure of the party on whom the burden of proving lies, is sufficient to enable you to dispose of the issue. Especially as, in this particular case, the pursuer holds that the cause of the spots on the paper is capable of being ascertained to absolute certainty. If it be so, he was the more bound to establish it. Neither party seemed to me to believe that this was the fact; for though they put some questions to the chemical witnesses tending to extract from them the means of appreciating the grounds of their respective operations, each seemed to think it safer to rely on the general opinions given by those on his own side than to attempt to shake the opinions of those of his opponent by cross-examination on their tests. There are many scientific questions indeed, and this seems to me to be one of them, in which it is much better for a jury to take the opinions of men of science as facts, instead of endeavouring to appreciate them,—not by considering the character of the witness, or the manner in which he gives his evidence, or the accordance of his testimony with the other circumstances,—bat by attempting to understand what are called their tests;—an effort of which the difficulty, if not the vanity, is sufficiently implied in the circumstance that persons of skill like them rarely concur in acknowledging the same tests; so that as soon as this matter is gone into, the practical simplicity of trial is at an end.

If you should be of opinion that the pursuer has traced these spots to the defender's work, then you must make up your minds as to the facts of his having sustained damage thereby. For I must state to you, that it is the duty of a pursuer, who comes into Court demanding damages, which is the only action here, to prove his loss. I do not say he is bound to give it a name in pounds, shillings, and pence. But he must make out some actual loss. Now I have never seen a pursuer of an action of damages, do so little to show direct loss as has been done here. The giving out of paper, and the drawing in of money and of profit, are both increased. It is very true, if he can say, but for you I would have made more profit, that is loss. But has he established that? It seems to me that he has not given the means of estimating damages, and a jury should avoid giving damages when not sustained.

[His Lordship then proceeded to consider the second issue, ¹ and stated to the jury, that, in his opinion, even if a case of damages was made out against the defenders M'Donald and M'Kay, under the first issue, no such case was made out against either of the defenders Hamilton, or Arthur, under the second issue.]

The jury found a verdict for the defenders on both issues. ² The pursuer took exceptions against part of the charge of the judge, and he also obtained a rule on the defenders to show cause why a new trial should not be granted, in respect that the verdict was contrary to evidence. The bill of exceptions contained a full statement of the evidence, but no report was obtained from the judge who tried the cause. In support of the rule the pursuer pleaded, that, if his evidence were considered alone, it amounted to a complete proof, not only that the works of M'Donald and M'Kay grossly polluted the stream, but that the pollution remained in it when it reached the paper-mills, and caused the paper there made, to be low-coloured, and frequently spotted, so that its quality and price were greatly injured, and the pursuer's character as a paper-maker was lowered in the market. In addition to the other proof which was in itself exceedingly strong, the pursuer had adduced two scientific witnesses, Professor Thomson, and Professor Graham, who were corroborated by two other younger chemists, all of whom swore positively that the red spots were produced by madder, and that they had chemically ascertained this. The pursuer did not know that counter scientific evidence was to be led on this point, or he would have specially required his witnesses to detail the process of chemical analysis by which they arrived at the fact of the existence of madder. The defenders, however, knew all along that they were to adduce such proof, and it was their duty to have cross-examined the pursuer's scientific witnesses on these points, so as to have ensured a thorough trial, in the only way which, as they were fully aware, a thorough trial could be had. But they refrained from doing so, and it must be presumed they did so, because they knew that a thorough investigation of this vital point would be unfavourable to themselves; and they cannot fairly plead therefore that the pursuer had failed sufficiently to make out his case on this point, since it was in itself quite sufficient, and since the pursuer was not bound to bring out the mode of analysis unless he had been certiorated that the opinion of his scientific witnesses was to be controverted. While, as the spots in the paper were still extant, and the paper had all along been in manibus curiæ, it was still completely in the power of the parties, to ascertain beyond all doubt whether the spots were caused by madder or not. And, as the point was of essential importance, a new trial ought to be allowed. Further, the operations at the pursuer's rasping and grinding-mills, and the alleged escape of the ground dust of the dye-woods, had formed a prominent part of the defenders' proof. But no special averment relative to these mills appeared in the defences or on the record, and the pursuer, consequently, was not prepared to expect that it should have been prominently founded on in the proof. And though, in the particular circumstances, there might not be enough to warrant a new trial on the single ground of surprise, if it stood alone, yet the pursuer would be subjected to injustice if he was held bound by the result of a trial in which he, necessarily, and through the conduct of the defenders, was prevented from having his proof on one essential point, as complete as it would have been had the defenders' proceedings been regularly conducted.

_________________ Footnote _________________

¹ It is unnecessary to advert to this part of the charge, in reference to this report. It is given, ante, XV. 903, which see.

² April 14–19, 1837 (ante, XV. 895, which see).

The defenders M'Donald and M'Kay pleaded in answer.

This case had been tried, after very great preparation and expense, during five successive days, before a special jury. A plan of their works and of the stream was laid before the jury. Numerous witnesses were examined on both sides, and a verdict was found which met with the approbation of the judge who tried the cause. In the question between them and the pursuer, there was no exception to the law laid down at the trial or to the undue admission or rejection of evidence. The only question raised, was, whether the verdict was contrary to evidence. In dealing with this question, the court of review necessarily laboured under great disadvantages, as they had merely the judge's notes of evidence before them, whereas the jury had the actual witnesses examined in their presence, and observed not merely the words uttered by a witness, but his whole deportment, all which enabled them duly to weigh the accuracy, intelligence, and candour, of his testimony. No part of the jurisdiction of the Court was of a more delicate nature than that which enabled them, in extreme cases, to interfere with the verdict of a jury upon the evidence; and unless the exercise of that jurisdiction, in overturning verdicts, were strictly reserved for extreme cases, the confidence of the country in the administration of jury-trial would be at an end. In this ease there was unquestionably contradictory evidence, raising a proper question for the jury. If credit were given to the defenders' evidence, the pursuer had no case; but in such circumstances, a court never interfered to set aside a verdict. The pursuer's observations as to the defenders not having cross-examined his scientific witnesses with reference to their chemical tests, and as to the evidence regarding the grinding-mill have no weight or relevancy. 1st. The pursuer was bound to know that his scientific witnesses, like his other witnesses, might, and probably would, be contradicted by counter evidence. If, therefore, it was necessary to inquire into the process of chemical analysis on which the opinions of the scientific witnesses were grounded, it was the duty of the pursuer to have examined his own witnesses on these points. And, if he had done so, the defenders were prepared to have gone into a similar examination of the process of analysis on which their witnesses had founded their opinions. But the pursuer did not choose to enter on that examination; though he was necessarily bound to make out his case, under the penalty of having a verdict found against him. And therefore when the defenders called their scientific witnesses, they held it unnecessary to inquire into the process of analysis resorted to by them; being satisfied, and, as the result proved, correctly satisfied, that, without this, their evidence was strong enough to rebut that of the pursuer. And the pursuer had refrained from cross-examining these witnesses, as to the process of analysis resorted to by them, though it was quite competent for him to do so.—But, separately, the existence of red spots in the paper was only one important circumstance out of many such, as to which full evidence had been led. And considering the admitted facts, of the length of the stream from the defenders' works to the paper-mills, and the number and variety of public works, besides the populous village, intervening between them; together with other facts which were sufficiently tried, such as the state of exhaustion of the madder when discharged from the defenders' works; the filtering ponds of the defenders; the point, in the stream, where the discharge from the dye-works ceased to affect it; and the effect of the pursuer's grinding mill for dye-woods; there were facts enough before the jury, to prevent this Court from overturning the verdict. 2d. Although the defences and record did not specially refer to the pursuer's grinding and rasping-mills for dye-woods, they referred generally to all the public works on the stream, which included these. And as the pursuer himself had expressly led evidence by Daniel M'Kain, No. 1; Dr Thomson, No. 6; Professor Graham, No. 7; Cuthbert Nairn, No. 30; and William Woodhouse, No. 34, the foreman of the chipping and grinding-mills, to prove that the grinding and rasping-mills did not affect the stream, and consequently could not hurt the pursuer's paper, the defenders were fully entitled to lead counter-evidence on that subject, as they had done.

Lord Corehouse.—This is a case of much importance, and it has been considered by the Court with great attention. I am fully sensible that there is no part of our judicial duty more delicate, or requiring to be more cautiously exercised, than that of determining whether we should set aside the verdict of a jury and grant a new trial. By the very constitution of jury trial it is implied that the province of the judge is to deal with questions of law and relevancy, while it is the peculiar province of the jury to deal with facts and evidence. The jury, at the trial, possess much better means of deciding on the evidence, than we can enjoy here. The witnesses themselves appear before the jury, who see their whole manner and deportment in giving their testimony, and have the best means of determining what weight is due to each witness. We have no such advantages. We have not even the proof laid before us, in the same way as when it is taken on commission, in which case every word uttered by the witness is taken down, read over to him and signed by him. We have only the notes taken by the judge at the trial to look to, and, however carefully taken, these cannot be equivalent even to the authenticated proof which is taken on commission and reported. In all these circumstances I am fully alive to the intolerable inconvenience which would be occasioned to the country, if any rule were adopted or countenanced, by which it could be held that we should grant a new trial, merely because we took a different view of the evidence from that which the jury had taken. The Court can give no countenance to any such rule. But notwithstanding all these grave considerations, and after allowing the fullest weight to them, I have reluctantly come to the conclusion, in this case, that a new trial ought to be granted, as being essential to the dispensation of justice between these parties. I do not mean to say that I hold the verdict, which was given, to have been contrary to the evidence led at the trial. I do not mean to say that if I had been a juryman, present throughout the whole trial, I should have given a different verdict from that which was given. But I think the case was not completely or thoroughly tried. I think it was not so tried as to enable the jury to arrive, with certainty, at facts which were vital to the case, and which may still be arrived at with certainty. And, therefore, unless a new trial be granted, the cause will have come to an end without its true merits having ever been thoroughly tried. That would not be dispensing justice to the parties, and should be prevented, if there are legal and competent means of preventing it.

I do not intend to go over the whole of the evidence led in this case, which is voluminous; I shall merely advert to some of the principal parts of it by which my opinion has been affected.

Looking at the evidence of the pursuer, in the first instance, by itself, it forms a complete body of proof to support his case. He proves the quantity of madder used at the defenders' dye-works; and the quantity of it found in the stream, coming from these works. The defenders, M'Donald and M'Kay, admit on record that this madder is not exhausted, but discolours the stream for many yards below their works. It is proved that madder is found in the stream immediately above the paper-mills, and that it is found adhering to the filters of the pursuer, as well as below his works. Besides this, Dr Thomson, Professor of Chemistry in the University of Glasgow, and Mr Graham, the Professor of Chemistry at the Andersonian Institution of Glasgow, corroborated by the son and the assistant of Professor Thomson, declare that they, by chemical analysis, ascertained that the colouring matter of the spots in the paper, is madder. Thus the pursuer made out a perfectly clear and triumphant case, had there been no counter-evidence led to contradict it. And it appears to me that there are three points in regard to the counter-evidence which are most material. 1st, As to the proof founded on chemical analysis, the defenders adduce witnesses, who possess, I believe, the highest character for scientific skill, and they swear, in direct contradiction to the scientific evidence of the pursuer, that the spots in the paper are not caused by madder; that they are certain of this, and that the spots are probably caused by the dust of the dye-woods, ground at the pursuer's grinding-mill. The scientific witnesses being thus in direct contradiction, have the effect of neutralizing each other. But so far as I can see at present, they should not have been allowed to do so. It may, by chemical analysis, be ascertained whether these spots were caused by madder, or by some other substance. In regard to the testimony given by Professor Thomson, and the pursuer's other scientific witnesses, the pursuer did not inquire by what process of analysis or examination they arrived at the conclusion that madder caused the spots. And it appears to me that the pursuer was not to blame in this. He did not know, that, on this point, contradictory evidence was to be adduced. But the defenders were all along in the knowledge that they were to adduce Dr Christison and Dr Gregory, as contradictory to Dr Thomson and the others, and the defenders, I think, should have cross-questioned the pursuer's witnesses as to the process of analysis to which they resorted for ascertaining whether or not madder was the cause of the spots; and the defenders should afterwards have shown minutely, and in detail, by their own witnesses, what was the process of analysis resorted to by them for ascertaining the same point. Had this course of investigation been followed, the proper means would have been employed for thoroughly trying and determining the truth as to this circumstance, which appears to me to be important and decisive in its character. And the means of ascertaining the truth on this point are still within the reach of the parties. As the case now stands I can only say that I lay wholly out of view this very important evidence, the witnesses being contradictory, and their examination being so conducted that they neutralize each other, while not one of them has been thoroughly sifted. It is true that, according to the general rule, the pursuer must make out his case, or fail; but, looking to the whole circumstances, it appears to me that the pursuer, proceeding with perfect regularity, had so far established his case that the onus probandi came to be shifted on the defenders. When it did so, they knew that the cause, as to this point, could not be thoroughly tried unless the process of chemical analysis, employed by each of the scientific witnesses on both sides, was specially inquired into. With this knowledge, the defenders refrained from cross-examining the pursuer's scientific witnesses as to the process of chemical analysis employed by them, and did not examine their own witnesses as to this. I think, therefore, that the fault lay with them, which led to the evidence at the trial being quite inconclusive on this important point. For the sake of justice between the parties, the truth should be conclusively ascertained; and it can still be conclusively so ascertained, as all the men of science agree that it is a matter within the reach of chemical analysis to determine, whether the spots on the paper were, or were not, produced by madder.

2. [His Lordship next adverted to the important circumstance, that some of the defenders' witnesses had sworn that, although the same stream was used at both the pursuer's upper and lower paper-mills, there were no red spots in the paper at the upper mill, though there were at the lower mill: and observed that if this fact were clearly established it might alone suffice to support the verdict. But his Lordship considered that the evidence on this subject was in an unsatisfactory state, and was understood to add that the defenders' witnesses did not speak to a date, so late as that at which the spotted paper exhibited in Court had been made. His Lordship also observed, that, even if it still happened that the paper of the lower mill alone was spotted with red, that might be caused by some part of the process in the lower mill acting with more effect, than any part of the process at the upper mill did, on madder which might be contained in the water at both mills. But that however this might be, this important part of the cause was left in an unsatisfactory state, on the evidence. His Lordship added that he did not consider this point deserved so much weight, as the first, in deciding on the question of a new trial. His Lordship then proceeded as follows.]

3. In another important part of the case there is evidence led on both sides of a directly contradictory character. I refer to the dust of the dye-woods, which is produced at the pursuer's grinding mill. It is proved that where part of the roof of the mill was off, it escaped, floated to a distance, and covered the tiles of the roof of the mill, sloping towards the upper dam.

As to this, Professor Thomson, on the one hand, has positively sworn that it is impossible the dust could escape from the mill, so as to enter the paper works. And Dr Gregory positively swears on the other hand, that he thinks it impossible to exclude the red powder from these works. This, however, is a matter of fact which can be ascertained, and which should be determined with certainty. If the statement of Thomson be right, the defence rested on this part of the case flies off. But if Gregory be right, then a strong ground of defence will on the contrary be established. At present the evidence leaves it impossible for any person to say whether the fact is with the pursuer, or with the defenders. This is not the footing on which the trial of a cause should be left, where matter of fact can be ascertained conclusively. Let the grinding-mill be set agoing. Let witnesses on both sides be present. And let the fact be put to the test whether the escape of the dye-wood dust can be, and is, effectually prevented. I feel much doubt, myself, whether it can be so. Thomson may have overlooked some apertures of escape, and he does not specify what species of examination he had made before arriving at the conclusion which he, no doubt, confidently asserts. It will not do to say that the moisture connected with the process keeps down the dust, for, when the roof is off, it is clearly proved that the dust flies out. Dr Gregory and Dr Christison were there and saw the dust flying about in quantities, and floating on the pursuer's dam. But at that period the roof was off owing to a temporary cause. At any other time, it was only in small quantities that the dust was seen. The actual state of the fact as to these points ought not to be left upon conflicting evidence, but should be positively ascertained. Suppose, for instance, that a question arose at a trial, as to the matter of fact whether a horse was sound or not; that the pursuer adduced a veterinary surgeon, who swore that he knew the horse to be unsound, and the defender brought another, who swore directly to the contrary that he knew it to be sound. It would not suffice for a just trial of the cause, to leave matters on this unsatisfactory and conflicting evidence when the fact could be thoroughly ascertained. It would be proper to have the men of skill examined again as to the grounds of their respective opinions. He who alleged unsoundness might be asked what species of unsoundness it was, whether crib-biting, bone-spavin, &c. And then the defenders' witness might be asked whether there was any spavin; or if a spavin, whether it was in the bone, &c. And thus the proper mode of examination would be resorted to for thoroughly trying and ascertaining the facts essential to the justice of the case. And it is upon analogous grounds that I think this cause ought not to be left as it now stands, but ought to be tried over again. In proposing to grant a new trial my ground is that the cause has not yet been so tried as to do full justice to the parties. I do not say that if I had been a juryman, I should have given a different verdict. But the cause may be tried more satisfactorily for the attainment of truth as to important points, and therefore more justly for both parties. And, on that account, notwithstanding my reluctance to grant a new trial, I think it should, in this cause, be granted as essential to the justice of the case.

Lord Gillies.—I concur in the opinion which has now been delivered, and I shall only make two observations on the case. In the first place, I think the case was not thoroughly tried. Where a case has been thoroughly tried it would be highly dangerous to allow a new trial, for, in the event of a verdict being returned under the second trial, opposite to that which was returned under the first, the result might be that a third trial would require to be granted. But where a case has not been thoroughly tried in the first instance, this danger does not exist, for a second verdict, if obtained after a thorough trial of the case, would not, though opposite to the first verdict, found any application for a third trial. In the second place, the question, whether the red spots in the paper are caused by madder, or by some other substance, is a matter of fact which may be ascertained with as much accuracy at the second trial, as it could have been at any previous period. This is not like a question as to some past event, depending on the memory of witnesses, and respecting which their testimony is therefore exposed, from various causes, to be weaker in proportion to the distance of time which elapses before they are examined. The paper containing the spots is extant in the bands of the Court, and it may still be ascertained with precision, by scientific men, whether madder caused these spots or not. Suppose, for example, that a mass of metal was exhibited by a pursuer at a jury trial, who alleged it to be zinc, and produced two chemists who swore that it was zinc; while the defender alleged it to be tin, and produced two witnesses who swore that it was tin. If the merits of the case depended on the question, whether that metal was zinc or tin, and a new trial was applied for, I think in such a case the Court should grant a new trial, because the fact which was vital to the justice of the case was left uncertain on the evidence at the first trial, and could be ascertained and placed beyond doubt at the new trial. And on that account I think the new trial should be granted here, so that it may be placed beyond the reach of doubt whether these spots were, or were not, produced by madder.

Lord Mackenzie.—I concur in the opinions which have been delivered. The only observation which I would make, refers to the dust from the pursuer's grinding-mill for dye-woods, to which Lord Corehouse has already adverted. That is a subject of great importance to the merits of this case, for, so far as appears to me, the spots on the paper must be ascribed either to the madder from the dye-works of M'Donald and M'Kay, or to the grinding-mill of the pursuer. The pursuer says, that, if he had had sufficient notice, from the first, that the defenders were to insist in this ground of defence, he would have been more fully prepared to meet them than he was. I think there is much in this plea. The defences, on the record, do not appear at all to be placed upon this; and as it is quite possible, by the aid of chemistry, to discover the true cause of these spots, I think fair opportunity should be afforded to both parties for investigating it.

Lord President.—My opinion entirely coincides with those which have been delivered. I went twice over the evidence which was adduced in this case, and, on the second occasion, I inverted the order in which it had been led, and began by reading first the evidence of the defenders, so as to give it every facility in producing the fullest impression on my mind. And the result at which I have clearly arrived is this, that the cause has not been thoroughly tried. There is one circumstance which I may mention as having produced a strong impression on me. From the appearance of the spots, they must have been produced by something which was not a solid body, but in a state of solution. No mere dust, however small and impalpable, could produce them The colouring matter which produced them. must have been in solution, and have acted on the paper while in the state of a pulp. The spot produced is a fine, circular spot, such as is caused by a drop of ink; and no solid colouring matter, though in the shape of the finest sand or powder, could produce similar spots. I do not see how the ragged particles of dye-wood, such as could alone come from the pursuer's rasping-mill, could produce them. In addition to this, it appears to me that, from the moistening of the wood at the grinding-mill, it is not very likely that much dust should escape thence. And, on the whole, I am of opinion that a new trial should be granted.