Scottish Court of Session Decisions

James Gilchrist, proprietor of the lands of Thornice, near Braidwood, Lanarkshire, applied in the Sheriff Court of Lanarkshire for interdict against William Thomas Wilson, his tenant, to prevent him from ploughing or breaking up the said lands. On 28th March 1899 interim interdict as craved was granted, with this clause, “on the condition that the petitioner find caution for any consequent damage to the respondent.” Gilchrist never found caution, and on 3rd April abandoned the interdict.

Wilson brought an action in the Sheriff Court of Lanarkshire for £63, 4s., and averred that the interdict had been obtained wrongously, illegally, and unwarrantably, and had prevented him from having the beneficial use of the lands let to him, with the result that he had suffered damages to that amount.

He pleaded—“(1) The pursuer having suffered loss and damage through the interdict libelled or wrongfully obtained by the defender is entitled to compensation from the defender for the loss so sustained.”

The defender pleaded, inter alia—“(4) The interdict complained of never having become effectual to prevent the pursuer from ploughing, he can have suffered no loss or damage in consequence, and the defender is entitled to absolvitor with expenses.”

On 11th July 1899 the acting Sheriff-Substitute ( Mitchell) pronounced the following interlocutor :—“On the motion of the pursuer and of consent in respect there is a contingency between this action and the one presently pending in this Court between the same parties, No. A 16/1899, Remits this process thereto for conjunction therewith.”

On appeal the Sheriff ( Berry) pronounced, on 4th November 1899, the following interlocutor :—“In respect of an appeal in the action A 16/1899, submitting the above interlocutor to review, and having heard parties' procurators and considered the case, recals the above interlocutor, closes the record, and having heard parties' procurators thereon, finds that it was a condition-precedent of the interim interdict attaching that caution should be found by the pursuer in that action: Finds that caution was not found, and that therefore the interdict never applied: Finds therefore that the pursuer could not be damaged by the interdict, and that the action is irrelevant, therefore dismisses the same: Finds the pursuer liable to the defender in expenses,” &c.

Note.— “The interim interdict complained of was granted in these terms—‘Grants interim interdict as craved, but on the condition that the petitioner find caution for any consequent damage to the respondent.’ No caution was found, therefore the interdict did not apply.”

The pursuer appealed to the Court of Session, and argued— The pursuer was bound to assume that caution would be found. He could not be expected to inquire every day to see whether the interdict had become operative. The person who wrongfully obtained an interdict was liable for all damage sustained by the party interdicted— Kennedy v. Police Commissioners of Fort-William, December 12, 1877, 5 R. 302. It had been decided that obtaining an illegal warrant of ejectment was a relevant ground of damages, although the warrant was never executed— Bisset v. Whitson, July 27, 1842, 5 D. 5. The present case was on the same principle.

Counsel for the pursuer was not called upon.