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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kennedy and Currie v. Wise [1890] ScotLR 27_685 (31 May 1890)
URL: http://www.bailii.org/scot/cases/ScotCS/1890/27SLR0685.html
Cite as: [1890] SLR 27_685, [1890] ScotLR 27_685
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House Second Division.
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v.
Facts:
Held that an interlocutor disposing of the pursuers' title to sue, and of the competency of the action, but not disposing of the relevancy of the action, and “appointing the pursuers to lodge the issues proposed for the trial of the cause” on a day fixed, was not an interlocutor importing an allowance of proof, and therefore could not be reclaimed against within six days without the leave of the Lord Ordinary.
Upon 13th September 1889 Malcolm Kennedy and Lachlan Currie, fishermen at Bow-more, in the island of Islay, raised this action against Major Lovat Ayshford Wise, tenant of and residing in Islay House, Islay, for recovery of certain nets alleged to have been wrongfully seized on 22nd July 1889 by the defender's gamekeeper, or alternatively for £25 sterling, the value of the nets.
The defender averred that the nets had been used for poaching salmon within his boundaries, that he had instituted a prosecution against the pursuers in the Sheriff Court, Inverary, that warrant had been granted to serve the complaint on 26th September, and on 22nd October the pursuers were found guilty of salmon poaching and fined, their nets being declared forfeited.
The defender averred that under the Acts 9 George IV. cap. 39, and 7 and 8 Vict. cap. 95, he was entitled to seize and detain the nets when he found them used for poaching.
The defender pleaded—“(1) The action is irrelevant, and ought to be dismissed. (2) No title to sue. (3) The nets having been forfeited by order of the Sheriff-Substitute, the conclusions for their delivery, or alternatively for their value, are incompetent. (4) The defender being entitled to seize the said nets and detain them till the result of the prosecution was known, and the nets having now been forfeited by order of the Sheriff, should be assoilzied from the conclusions of the summons.”
Upon 14th March 1890 the Lord Ordinary pronounced this interlocutor—“Repels the second, third, and fourth pleas-in-law for the defender as pleas to exclude the action, reserving their effect on the merits, and decerns; appoints the pursuers to lodge the issue proposed for the trial of the cause, &c.
“ Opinion.—In this action, the summons in which was signeted on 13th September 1889, for delivery, or failing delivery for the value of nets wrongfully taken possession of, and for damages in consequence of their illegal seizure, it appears to me that the pursuers have stated a relevant case, and apparently when the action was raised there was no ground for contesting their right to have their action tried. The defender may have been able to establish a complete defence, but I do not see that he had any plea by which he could have avoided a trial of the cause. But it appears that after the action was raised, the defender lodged a complaint against the pursuers in the Sheriff Court of Argyllshire at Inveraray, charging them with an offence under the Salmon Fisheries Act, 7 and 8 Vict. cap. 95, on the occasion in question, and praying for infliction of the penalties provided by the Act, and for forfeiture of their nets; and on 11th October the Sheriff-Substitute, over-ruling an objection founded on the subsistence of this action, and after a proof, convicted the pursuers of the offences charged, imposed a penalty, and declared the nets to be forfeited.
I understand that the nets so forfeited are the same nets for delivery of which, and failing delivery for the value of which, this action concludes.
The defender now pleads this conviction as a conclusive answer to the present action, which entitles him to absolvitor without inquiry.
Had the prosecution been instituted and the conviction obtained before this action was raised, I should have felt much difficulty in sustaining the action, and should have considered the cases of M'Lellan v. Miller, December 7, 1832, 11 S. and D. 187, and Gilchrist v. Anderson, December 17, 1838, 1 D. 37, quoted for the defender, especially the former, as weighty authorities against it. But it appears to me that the fact that this action was brought before the prosecution was instituted makes an important difference. The institution of this action may not be a bar to criminal prosecution, but I cannot hold that after a question has been duly submitted to the Civil Court the defender can institute a summary prosecution, and present a conviction which he has obtained in it as a conclusive solution of the questions raised in the civil action. If that could be done at this stage of the action it would be equally competent at any future stage, at least before judgment. But I do not know of any authority for pressing a summary conviction to that extent. Besides, I cannot ascertain from the procedure following on the complaint or from the conviction, assuming it to be correct, whether or not the defender was justified in seizing the pursuers' nets brevi manu, and in with-holding them. It appears to me, therefore, that the pleas put forward to exclude the action must be repelled. The defender may have a complete defence, and the fact that the pursuers have been convicted may favour the conjecture that he has, and
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possibly or probably he may establish that he is in a position of privilege. These questions remain over for consideration. All that I decide at present is that inquiry into the merits is not foreclosed by the conviction founded on.” The defender reclaimed, and argued—The interlocutor was one importing an allowance of proof, and as such could be reclaimed against within six days without the leave of the Lord Ordinary— Little v. North British Railway Company, July 4, 1877, 4 R. 980; Brown v. Virtue & Company, July 16, 1889, 16 R. 987.
At advising—
The respondents in the reclaiming-note maintain that the reclaiming-note is incompetent.
The matter is ruled by the 28th section of the Court of Session (Scotland) Act 1868, as that section bears upon the 27th section and the 2nd section of the relative Act of Sederunt of 1870. The 28th section enacts—“Any interlocutor pronounced by the Lord Ordinary, as provided for in the preceding section, except under sub-division (1), shall be final unless within six days from its date the parties or either of them shall present a reclaiming-note against it to one of the Divisions of the Court, by whom the cause shall be heard summarily.”…
Now, the only sub-sections which bear upon the matter are the 2nd, 3rd, and 4th sub-sections of the 27th section. The 2nd sub-section provides—“If the Lord Ordinary considers that further probation should be allowed, but that it should be limited to proof by writ or oath, he may pronounce an interlocutor to that effect.” The 3rd subsection provides—“If the Lord Ordinary shall think that further probation should be allowed, and that it should be taken before a jury, he may without adjournment proceed to adjust issues for the trial of the cause, and pronounce an interlocutor approving of the issue or issues which have been so adjusted.” The 4th sub-section enacts—“If the Lord Ordinary shall think further probation should be allowed, but that such probation should not be taken before a jury, he may pronounce an interlocutor dispensing with the adjusting of issues, and determining the manner in which proof is to be taken.” …
The 2nd section of the Act of Sederunt 1870 provides—“That the provisions of the 28th section of the said statute shall apply to all the interlocutors of the Lord Ordinary herein referred to, so far as these impart an appointment of proof, or a refusal or postponement of the same.”
Now, looking at the interlocutor in question in its own simple plain terms, it appears to me not to be an interlocutor falling under any of the sub-sections of the 27th section, and I am equally clearly of opinion that it does not fall under section 2 of the Act of Sederunt of 1870.
The only thing which led to the case being postponed for further consideration was that a case was quoted to us from the Scottish Law Reporter — Little v. North British Railway Company—in which the First Division had allowed a reclaiming-note to proceed in circumstances said to resemble those of the present case.
We have had an opportunity of consulting the Lord President, and after an examination of the case itself we have come to the conclusion that the case does not bear upon the competency of this reclaiming-note. In the case of Little the Lord Ordinary had sustained the relevancy of the action, which the Lord Ordinary in this case has not done. Having sustained the relevancy, the action was plainly put in the position that proof by some mode or other was competent, and issues were ordered. The First Division held in those circumstances that the question was one of probation, and that it was competent to reclaim against the interlocutor.
Here the Lord Ordinary has not done what was done in that case. He has ordered issues to be lodged, but under the Act of 1868 issues should have been lodged already without any order, because in the 27th section it is enacted—“If the parties shall not agree to renounce further probation the Lord Ordinary shall appoint the cause to be debated summarily at the end of the motion roll on a day to be then fixed, before which day the parties shall respectively lodge the issue or issues, if any, which they propose for the trial of the cause.”
No doubt, after the Act of Sederunt was passed, the procedure prescribed by the 27th section was not followed in most cases. But the principle remained, and that being that issues are to be lodged, it is plain that lodging issues at that stage in no way settles the question whether there is to be proof, or the question how the proof is to be taken.
Here, though issues are to be lodged, it does not settle the question of the relevancy.
It is convenient in many cases that issues should be lodged in order to test the relevancy of an action, or to enable the Judge to decide as to whether the averments of the pursuer in the action justify the granting of an issue, or the allowance of proof by any other mode, and accordingly throughout the 27th section and its subsections there is no idea suggested that the ordering of issues disposed of the question whether the case is relevant. It is a matter of weekly practice in cases coming from the Outer House or from the Sheriff Court with proposed issues. The pursuer obtains leave to lodge his issues, and only after they have been lodged is the question of relevancy considered and disposed of. Up to that point accordingly there is no decision whether the case is to go to a jury or
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We must therefore hold this reclaiming-note incompetent.
The Court refused the reclaiming-note.
Counsel for the Appellants— F. T. Cooper. Agents— John C. Brodie & Sons, W.S.
Counsel for the Respondents— A. J. D. Thomson. Agent— William Officer, S.S.C.