Scottish Court of Session Decisions

This was an appeal in an action brought by Rain, tenant in the lands of Corbieton, against Gibb, farmer, Milton Park, to have him interdicted from flooding Rain's fields, and for decree for £5 as damage sustained. The damage was said to be caused by the overflow of the defender's dam.

The Sheriff allowed a proof, and the defender Gibb, being desirous of appealing the case for jury trial to the Court of Session, in terms of 6 Geo. IV. c. 120, sec. 40, and “The Court of Session Act 1868,” sec. 73, presented a petition to the Sheriff for leave to appeal, on the ground that the value of the cause did not appear on the original petition. In this petition he stated that he “verily believed that the value to him of the cause is more than £40.” The Sheriff appointed the defender to appear and make a solemn declaration. The declaration was in these terms:—

At Kirkcudbright, on Wednesday 7 th February 1877.…—Compeared William Gibb, who being solemnly sworn and examined, deponed—I am respondent in this action. It refers to the overflowing of a mill-dam. I think the issue of that action involves to me a sum exceeding £40. The water of the mill-dam supplies my whole premises. The yearly damage I would sustain by being deprived of the water would be about £50. There are thirteen years of my lease to run.

Cross-examined.—This action is to prevent my water from flooding the petitioner's field. My being prevented from flooding the petitioner's field wouldn't deprive me of my supply of water. The doing away of the dam is what would cause me damage. As long as I have the dam I am not prevented from having the water. I had it last winter and the winter before, and suffered no pecuniary loss.

“ Re-examined.—I know the part of the dam

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where petitioner says the water goes into the field. The remedy he asks could be effected without removal of the dam. The sum claimed in the petition is £5. That is for the flooding last winter.”

On considering the declaration the Sheriff-Substitute refused the petition for leave to appeal, with expenses, adding the following note:—“The deposition of the petitioner is so distinct and candid as to the subject and the value of the cause in question as to render any comment unnecessary. That action is brought to recover the sum of £5, claimed as damages done by overflow of water from this petitioner's dam last winter. The petitioner admits that the remedy asked for to prevent the recurrence of such damage could be effected without the removal of the dam; and he also admits that the removal of the dam, and his loss thereby of his water supply, is the only thing that would cause damage to him. That damage is not only prospective, but depends on something being done which the original petition does not ask for, and the petitioner says is not required. To say therefore that the value of the cause is above the £5 claimed is an insult to common sense, and to allow the cause to go to the Supreme Court on the ground of its being above £40 in value might justly be looked on as an unparalleled absurdity.”

On appeal, the Sheriff-Principal adhered. The defender then lodged two notes of appeal to the Court of Session.

The pursuer objected to the competency of the appeal, and argued—The Act 6 Geo. IV. c. 120, sec. 40, giving the right to advocate against orders for proof with a view to jury trial, is limited to causes “in which the claim is in amount above £40.” The Act of Sederunt (July 11, 1828), sec. 5, provides that “if in such causes the claim shall not be simply pecuniary, so that it cannot appear on the face of the bill that it is above £40 in amount, the party intending to advocate shall previously apply by petition to the Judge of the Inferior Court for leave to that effect, which application shall be intimated to the opposite party or his agent, and the petitioner shall be bound, if required by the Judge, to give his solemn declaration that the claim is of the true value of £40 and upwards, and on such petition being presented, and on such declaration, if required, being made to the satisfaction of the Judge, leave shall be granted to advocate, and the Clerk of the Inferior Court shall certify the same.” Here the certificate has been refused.

Argued for appellant—The Act of Sederunt does not apply to actions ad facta prœstanda— Learmonth v. Morton, January 17, 1829, 7 Sh. 276. An appeal was there held competent in a possessory question though the action did not set forth that it was above the value of £40. [Court—That, was before the Act of Sederunt came into operation.] In Sands v. Meggan, January 20, 1829, 7 Sh. 290, it was said the Act of Sederunt was not correctory of the statute— Hamilton v. Hamilton, March 20, 1877, 14 Scot. Law Rep. 438. The decisions on the Sheriff Court Act 1853, 16 and 17 Vic. cap. 23, sec. 22, such as Aberdein v. Wilson, July 16, 1872, 10 Macph. 971, support this view. The declaration was not properly taken, the petitioner being put on oath, and cross-examined by his opponent.

At advising—