Scottish Court of Session Decisions

In September 1835, John Tulloch, merchant in Inverness, presented a petition to the Dean of Guild of Inverness, stating that Alexander Mackintosh, merchant in Inverness, and others in his employment, were cutting down and injuring part of his house, particularly one of the gables which was wholly his own property, and craving interdict, and an order on the parties to restore the property to its previous condition. Mackintosh lodged answers, stating that he was the conterminous proprietor, and that his operations on the gable next to the property of Tulloch, could not be challenged, because the gable was his own exclusive property. On September 23, the Dean of Guild, “before answer, appointed judicial inspection of the premises to take place in presence of the Dean of Guild and his Council, to-morrow, the 24th day of September current, at two o'clock afternoon, and ordained the agents of the parties to attend such inspection.” On September 24, the following interlocutor was pronounced: “The Dean of Guild and his Council having inspected the premises in presence of the parties and their agents, appoints parties' procurators to say, whether they are willing to hold their respective pleadings as containing their full and final statement of facts, and that against Monday first, the 28th current.” Mackintosh then presented a counter-petition to the Dean of Guild, alleging that Tulloch had recently made encroachments on the gable and front wall of his (Mackintosh's) house, and that he (Mackintosh) was merely in the course of restoring it to its previous condition, when Tulloch had presented the petition first mentioned. Mackintosh prayed to have this petition conjoined with that of Tulloch, and to have Tulloch decerned to replace his (Mackintosh's) property in the state in which it was previous to his encroachments; or that the court should find that Tulloch had only a servitude over the gable, or, at least, that it was a mutual gable; and that Tulloch should be interdicted from all farther encroachments. Tulloch lodged answers alleging that the gable was his exclusive property, and denying that he had made any encroachments. The Dean of Guild, in November 1835, of consent of parties, conjoined the two processes and ordered a condescendence from Mackintosh, and answers from Tulloch; he also “ordained the parties, along with such condescendence and answers, to produce all writings whereon they mean to found, so far as in their custody or within their power.” These papers were lodged and revised, and a record was closed. In the preparation of the record, diligence was granted to both parties “for the recovery of writings.” In the revised condescendence for Mackintosh, the proof by which he offered to support his averments was stated in these terms: “Proof.—writings in process—other writings—witnesses, et omni habili modo.” On June 2, 1836, the following interlocutor was pronounced:—“The Dean of Guild, with advice of his council, having considered the closed record, and whole process, appointed the parties, before further answer, to name tradesmen, against the 8th instant, to inspect the gable in dispute; and to report as to the state of possession, or use of the said gable, for the seven years immediately preceding the commencement of the process, with certification.” Mackintosh reclaimed against this petition, and objected to the remit to tradesmen. On answers, the petition was, on June 10, refused, and the order for inspection was renewed, with the variation, that the tradesmen were to inspect and “report as to the state of possession, or use of the said gable (in their opinion) ^* for the seven years, &c.,” as above quoted. Thereafter minutes were lodged by each party, naming a tradesman, and an interlocutor was pronounced remitting “to Mr Robert Caldwell, architect and builder in Inverness, and John Mackenzie, mason in Inverness, the tradesmen named by the parties, in terms of the interlocutors of the 2d and 10th of June last, to make the inspection thereby ordered, with power, and recommending to them, before proceeding to the inspection, to name an oversman to decide between them in case of difference of opinion.” The two tradesmen named Peter Manual, superintendent of the County Buildings, as oversman, and all three inspected the building, and prepared a joint report, bearing that they had made inspection; that the two parties were in the mutual possession of the gable, and had been so for the last seven years, “the parties holding the use as follows;”—the report then stated the number of the fire places held by each party in the gable; the number of vents in the gable, which were fewer in number than the fire places; the state of the walls as being “recessed on each side of the chimney,” and fitted up with certain presses, &c., on the side of the gable where Tulloch's house stood, &c. The Dean of Guild thereafter appointed the three inspectors to appear in court and “be examined respecting the report made by them.” They appeared, and the record bore that each of them was “judicially examined by the court” in explanation of the various parts of the report as to the particulars of the possession of the parties, such as the state of the “recesses”

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^* So written in the interlocutor.

in the wall on Tulloch's side; the fact whether these recesses appeared to have been fitted up after the gable was built; the inferences to be drawn from the number of the respective vents and fire-places; the fact of the joists of Mackintosh's second floor being inserted in the gable, and apparently built originally in the wall, &c. The inspectors were also interrogated by each of the parties, but Mackintosh did so, under reservation of the objection which he had previously taken to the whole investigation. The following interlocutor was thereafter pronounced on October 31, 1836: “The Dean of Guild having again considered the conjoined processes, with the report of the tradesmen named by the parties, and of their oversman, and their judicial declarations, and having advised with his council, after repeated inspections of the gable in dispute, finds it not denied, that for seven years preceding the commencement of Mr Tulloch's operations, referred to in the mutual complaints, no alteration took place on the state of possession, or use of the gable in question, and that it appeared to form the western gable of the front house belonging to Mr Tulloch, subject to a certain servitude in favour of Mr Mackintosh: Therefore, continues the interdict granted at Mr Tulloch's instance against Mr Mackintosh, and recalls the interdict granted at Mr Mackintosh's instance against Mr Tulloch, and decerns; but finds no expenses due to either party.” A note was added to the interlocutor, stating various facts as appearing on inspection, and having influenced the judgment, and, inter alia, that “it was not denied, and indeed it was obvious on the most cursory examination, that for a much longer period than seven years the gable in question underwent no alteration, till Mr Tulloch commenced his operations. The report of the tradesmen confirmed this. The gable certainly appeared to form part of Mr Tulloch's building; but, on the other hand, it was indisputable that Mr Mackintosh had two vents in it (one of which only was now open), and that the joists of the second floor of his house were supported by the disputed gable.”

In February, 1837, before which a new Dean of Guild was in office, a petition was presented by one of the parties; and on answers, the Dean of Guild ordered parties to say whether they held the report, and the judicial declarations of the inspectors, to be legal evidence though the inspectors had not been sworn, “and whether they had any farther evidence to adduce.” Thereafter, on April 8th, parties being heard, the Dean of Guild “recalled in hoc statu the interlocutor of the 31st of October last, and before farther answer, allowed to both parties a proof of their respective averments contained in articles 3d, 5th, and 6th of Mr Mackintosh's Revised Condescendence, and in articles 1st, 2d, and 4th of Mr Tulloch's Revised Statement of Facts, as to the possession and use of the gable in question, held by them: Assigned the 29th day of April current for leading the proof, and granted diligence against witnesses and havers in common form, to be reported on that day.”

Some of these averments referred to facts as early as 1783, and it was explained in a note to the interlocutor, that, nevertheless, so extensive a proof was only allowed for the elucidation of the state of possession for the last seven years, and for determining a possessory question.

Tulloch then emitted a declaration, as prescribed by the act of sederunt, that the subject in dispute was above the value of £40, and applied by petition to the Dean of Guild for leave to advocate the cause, under 6 Geo. IV., c. 120, § 40, which was granted, and a bill of advocation was passed, de piano, under which the respondent pleaded inter alia, that advocation with a view to jury trial was incompetent, in respect that probation had already taken place in the inferior Court without objection on the part of the advocator, and the proof ought now to be concluded there, the rights of both parties, as to the future progress of the cause, being now regulated by the above section.

It is provided by 6 Geo. IV., c. 120, § 40, that when, in inferior courts, “a proof shall be allowed and taken according to the present practice,” the Court of Session, in reviewing the judgment proceeding thereon, shall specify “the several facts material to the case, which they find to be established by the proof,” and express how far their judgment proceeds on fact, or on law, &c; and the judgment may be appealed only so far as regards matter of law, “but shall, in so far as relates to the facts, be held to have the force and effect of a special verdict of a jury, finally and conclusively fixing the several facts specified in the interlocutor.” Power is given to the Court of Session, except in consistorial causes, to send part, or the whole of the cause before a jury, and to give such directions with regard to the proof already taken, as seems just; or to remit to the inferior Court, with instructions; “but it is hereby expressly provided and declared, that in all cases originating in the inferior Courts, in which the claim is in amount above £40, as soon as an order or interlocutor allowing a proof has been pronounced in the inferior Courts (unless it be an interlocutor allowing a proof to lie in retentis, or granting diligence for the recovery and production of papers), it shall be competent to either of the parties, who may conceive that the cause ought to be tried by jury, to remove the process into the Court of Session, by bill of advocation, which shall be passed at once without discussion and without caution; and in case no such bill of advocation shall be presented, and the parties shall proceed to proof under the interlocutor of the inferior Court, they shall be held to have waived their right of appeal to the House of Lords, against any judgment which may thereafter be pronounced by the Court of Session, in so far as, by such judgment, the several facts established by the proof shall be found or declared.”

Tulloch pleaded in support of the competency of the advocation, that no proof had been allowed in the inferior Court, such as could confer the right of advocation, until the interlocutor of April 8th, and he had thereon brought his advocation. It was only when a proof at large, or prout de jure, had been allowed, that the right of advocation arose, and it had been so held in the recent case of Hamilton. ¹ And farther, as Mackintosh, in the present case, had all along objected to the competency of the investigation made in the inferior Court, so as to keep himself free from being bound by it, he was not entitled to plead that such investigation had the effect of binding his opponent, and barring him from advocation.

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¹ June 10, 1837 (ante XV. 1105).

Mackintosh answered that the right of advocation arose so soon as an interlocutor was pronounced allowing a proof of any sort whatever, excepting only “a proof to lie in retentis, or granting diligence for the recovery or production of papers.” The remit which had been made to men of skill, and the report obtained from them, followed by their judicial declarations, especially taken along with the whole proceedings in causa, did amount to an investigation of the nature of a proof. So much was this the case that it had been repeatedly held that a remit to men of skill, if acquiesced in by both parties, precluded them from afterwards resorting to other proof. ² And as this species of proof did not fall under either of the two exceptions in the statute, the right of advocation immediately arose upon its being allowed by an interlocutor of the inferior Court, and Tulloch, by failing to advocate in due time, and by entering on the proof, was barred from advocating afterwards. The proof must now be concluded in the inferior Court, as either party had a jus quæsitum that the future progress of the cause, both as regarded the right of appeal, and the right of jury trial, should fall under the limitations of the statute. In the case of Hamilton, nothing was decided, except that an allowance of proof, scripto vel juramento, did not authorize advocation, which was quite different from the present case. And although the respondent had objected to the competency of the investigation, the advocator had not done so, but had identified himself with it, and founded on it, so that he was now barred from advocating.

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² Wilson, Feb. 10, 1837 (ante XV, 5S3.

The Lord Ordinary “repelled the plea of incompetency set up by the respondent,” and found him liable in expenses. ^*

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^* Note—“One Dean of Guild, on the express consent of the parties, remitted to tradesmen. Neither party could have advocated against this as against an improper mode of proof, or wished to do so. On the contrary, they allowed the Dean to decide on the report. After this, a new Dean, on a petition from the party his predecessor had decided against, virtually recalled the remit, and allowed a proof at large. It is against this interlocutor that the present bill is presented on the 40th section of the Judicature Act. But under the respondent's first dilatory plea, the bill is said to be incompetent, because ‘probation has already taken place in the inferior court.’ The Lord Ordinary repels this, because that probation (by the report) has been disregarded by the last Dean of Guild, and he, for the first time, has allowed that sort of proof, which, if it be to be taken at all, parties are entitled to have taken a jury.”

Mackintosh reclaimed.