Scottish Court of Session Decisions

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Cite as: [1876] SLR 13_629, [1876] ScotLR 13_629

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SCOTTISH_SLR_Court_of_Session

Page: 629↓

Court of Session Inner House First Division.

Wednesday, July 5. 1876.

[ Lord Rutherfurd Clark, Ordinary.

13 SLR 629

Dudgeon

v.

Thomson and Donaldson.

(Ante, p. 384.)

Subject_1Process
Subject_2Breach of Interdict-Proof
Subject_3Jury Trial
Facts:

Held that a petition and complaint for breach of interdict against a firm consisting of two partners, one of whom had been interdicted at the instance of the complainer, was a case for proof before the Court, and was not suitable for jury trial.

Opinion ( per Lord Deas) that as a question of breach of interdict is one of contempt of Court, it is the duty of the Court themselves to decide whether the contempt has been committed.

Headnote:

A petition and complaint for breach of interdict at the instance of Richard Dudgeon, with concurrence of the Lord Advocate, against William Thomson and Benjamin Donaldson, sole partners of the firm of William Thomson & Co., Glasgow, was presented to the First Division of the Court. The interdict which it was alleged had been broken was obtained in 1873 by the complainer against William Thomson, who afterwards went into partnership with the other respondent Donaldson.

In the answers lodged for the latter he maintained that as the interdict had no application to him personally he could not be guilty of a breach thereof or of contempt of Court. After answers had been lodged and counsel heard, the cause was remitted to Lord Rutherfurd-Clark (Ordinary) in terms of the Act of Sederunt 11th July 1828.

The Lord Ordinary thereafter closed the record, and pronounced an interlocutor in which he assigned a diet for the adjustment of issues.

Against that interlocutor the complainer Dudgeon reclaimed, on leave being granted for the purpose.

He argued that in a case of breach of interdict a jury trial was unusual, and referred to the following authorities — Mackenzie v. Mags, of Dingwall, Feb. 12, 1839, 1 D. 487; Gray v. Petrie, Feb. 17, 1848, 10 D. 718, and 11 D. 1021; Menzies v. Macdonald, Feb. 13, 1864, 2 Macph. 652; M'Neill v. Scott, March 17, 1866, 4 Macph. 608; Act 6 Geo. IV. cap. 120 (Judicature Act), sec. 28; Act 29 and 30 Vict. cap. 112, sec. 4; (Evidence Act 1852).

The respondents argued—The case was fitted for jury trial (1) as being of a quasi-criminal nature; and (2) because the question of Donaldson's liability was one which a jury would best decide.

At advising—

Judgment:

Lord President—I am against a petition and complaint for breach of interdict being tried by a jury, for the two reasons which have been mentioned in support of that view by the counsel for the respondents. The first is, that it will come out in the course of the trial that this is a case of a quasi-penal character, and therefore peculiarly suited for a jury. If that should happen, it would prejudice the mind of the jury in an illegitimate way, such as is not desirable. That is one reason; and the other is, that there is a very difficult question raised here as to the liability of the defender Donaldson as a partner of Thomson, and the question will be, not whether Donaldson has infringed the patent so much as whether he is so involved as to have committed a contempt of Court. That is a question which is particularly well suited for the decision of the Court without the assistance of the jury.

Lord Deas —There is no doubt that a question of breach of interdict is a question of contempt of Court, which cannot be sent to a jury in this case without committing to them to the whole extent our jurisdiction and our duty to ourselves to decide whether the contempt has been committed.

Lord Ardmillan and Lord Mure concurred

The following interlocutor was pronounced:—

“Recal the interlocutor, and remit to the Lord Ordinary to appoint the cause to be tried before himself without a jury, reserving all questions of expenses.”

Counsel:

Counsel for the Complainer (Reclaimer)—Dean of Faculty (Watson)— Balfour— Hunter. Agent— D. Curror, S.S.C.

Counsel for the Respondents— Asher— Jameson. Agents— Auld & Macdonald, W.S.
1876

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