United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1822) 1 Shaw 125

No. 29.

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

1 st Division.

Robert Dowie, Appellant.—Clerk—L'Amy—Brownlee

v.

James Douglas, Respondent.—Jeffrey—Hunter

March 27. 1822.

Lord Alloway.

Subject_Jurisdiction — Consuetude — Reparation. —

Held (affirming the judgment of the Court of Session,)—1.—That the Bailies of the burgh of barony of South Leith have, by consuetude, a jurisdiction over the inhabitants of the separate and independent territory of the Citadel of North Leith, notwithstanding a declinature.—2.—That they are entitled to exercise that jurisdiction, when sitting within the territory of South Leith.—3.—That the jurisdiction of burghs of regality, of which the Magistrates of a royal burgh are superiors, is not affected by 20. Geo. II. chap. 43; and,—4.—That damages are due for a blow inflicted with a heavy iron bar on the head, to the danger of life, although the party so struck had previously given a slight blow or push with his hand, and was alleged to have begun the affray.

Dowie was proprietor of a small house situated in Citadel street, North Leith, which was possessed by the respondent Douglas as his tenant, and his own residence was also in that street. In the month of December 1814, Dowie having gone into the shop of Donald M'Kenzie, smith in North Leith, where Douglas happened to be, a dispute occurred between them relative to the payment of the rent of the above house; and after a good deal of altercation, in the course of which Douglas had made use of some

_________________ Footnote _________________

* Not reported.

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irritating expressions, and had given Dowie a slight blow on the shoulder with his fist, the latter took up a heavy bar of iron, and struck Douglas a severe blow upon the head, by which he was knocked to the ground, and his life put in danger. Douglas thereafter brought an action before the Bailies of South Leith, in which he stated,“That upon the morning of the 20th of December 1814, while the pursuer was quietly standing in the workshop of Donald M'Kenzie, smith, North Leith, Robert Dowie, Citadel street, Leith, did, in a violent and outrageous manner, without cause or provocation, strike the complainer a blow upon the head with a large bar of iron, in consequence whereof he was knocked down and severely wounded, to the great effusion of his blood, and manifest danger of his life; and he concluded for £500 damages.” Dowie declined the jurisdiction on various grounds to be hereafter stated, but the Bailies repelled them, and, after allowing a proof, found it proved that, “on the morning of the day libelled, the defender was guilty of a barbarous and unjustifiable assault on the person of the pursuer in the shop of Donald M'Kenzie, smith in Leith;—that the defender struck the pursuer a most severe blow on the head with a bar of wrought iron, of the weight of at least 20 lbs;—that, in consequence of the injury thereby done to him, the pursuer was for a fortnight in danger of his life—was for nine weeks confined to bed, and for several weeks thereafter incapacitated from gaining his livelihood by working at his usual occupation;—that no evidence has been adduced on the part of the defender, and that nothing is established by the evidence of the pursuer's witnesses, which can be held to justify the conduct of the defender, or even in any material degree to alleviate his guilt.” They therefore decerned against him for £150 of damages, besides the amount of the surgeon's account, and expenses.—This decree having been extracted, and Dowie having been imprisoned in virtue of it, he brought a bill of suspension and liberation, which was passed. In support of it he contended, 1. That the bailies of Leith, being only bailies of barony, and not independent of the superiors, (the Magistrates of Edinburgh,) had, according to the 20. Geo. II. c. 43, § 17, no power to decide in any civil action to a greater extent than forty shillings sterling; 2. That the Bailies of South Leith had no jurisdiction over North Leith or the Citadel, where he resided, and where the alleged offence was committed, both of these places being within the bounds of the burgh of regality of Canongate, and subject to the jurisdiction of the Magistrates of that burgh, 3. That, supposing that the Bailies of South Leith had a

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jurisdiction by consuetude over the Citadel, still their decision was null, because it was pronounced when sitting in the court-house of South Leith, and not within the territory of the burgh of regality to which the Citadel belonged; and, 4. That as Douglas was the first aggressor, damages were not due to him; and, at all events, those which had been awarded were excessive. To this it was answered, 1. That the Citadel of Leith was erected into a burgh of regality in 1662, of which the Magistrates of Edinburgh were the supreme lords; and that the jurisdiction was reserved in its full original extent under the 26th section of the statute, by which it was declared that the general enactment should not “prejudice any jurisdiction or privilege by law vested in, or competent to the corporation or community of any royal burgh in Scotland;” 2. That the Bailies of South Leith had, from 1709 downwards, exercised a jurisdiction over the inhabitants both of the Citadel and of North Leith, as was proved by the records, and had done so in the court-house of South Leith; and, 3. That, in point of fact, Dowie had been the aggressor; but that, at all events, the slight blow which had been given could not justify the violent assault which was made in return.

Lord Alloway found the letters orderly proceeded; and the Court, after being equally divided on the question of jurisdiction, and Lord Alloway having been called in, adhered to his interlocutor on the 30th of May 1817. ^*—Dowie having appealed on the above grounds, the Lord Chancellor, without making any observations, moved, and the House of Lords “Ordered and adjudged, that the interlocutors complained of be affirmed.”

Appellant's Authorities.— (1) —20. Geo. II. c. 48. § 17.—1. Ersk. 4. 30; Sheriff Clerk of Renfrewshire, May 27. 1794, (Bell's Cases, 15, and 7714)—(3.)—L Ersk. 2. 29; Lawrie, Jan. 21.1812, (not rep.)—(4.) Hume, 58.
Respondent's Authorities.—(1.)—20. Geo. II. c. 43. § 26.—3. Bank. 10. 48.—4. Ersk. 4.21—Maxwell, Dec. 16.1775, (7381); Begbie, Jan. 26.1776, (7709);— (2.)—Innes, Dec. 8.1622, (3110); Innes, Dec. 7. 1622, (3100); Blair, July 1730, (3099.)

Solicitors: Spottiswoode and Robertson,— J. Chalmer,—Solicitors.

(Ap. Ca. No. 12.)

_________________ Footnote _________________

* See Fac. Coll. May 30.1817, No. 180, where the following opinions are reported to have been delivered:—

“ Lord Hermand said, he did not think the objection to the jurisdiction well founded. The jurisdiction was clearly good before the passing of the act 20. Geo. IL c. 43, and it never could be the intentionof that act to do away such jurisdiction; and he held that the consuetude rendered the jurisdiction good as to the place in which it was exercised.

Lord Balcray said, that he did not conceive the jurisdiction act could touch this case. If there had been no consuetude as to the place where the jurisdiction was exercised, there might have been some difficulty upon the other point of the case; but, as the fact stood, there could be none; for a clear consuetude had been proved for upwards of 100 years. This being proved, the cases of Portsburgh and the Gorbals must regulate the decision of the present question.

The Lord President observed, that all the cases that bad been produced to prove a consuetude went only to show that, in such a number of instanccs, the parties had found it convenient to submit to the jurisdiction. In the case of Blair there was no declinature, which distinguished it from the present, in which the jurisdiction had been objected to ab initio, and consequently bad not been prorogated by the suspender. His Lordship did not conceive that the Bailies of Leith had any more jurisdiction, in questions relating to inhabitants of the Citadel, than the Court of Session has in cases of teinds. He, however, concurred in thinking that the jurisdiction, as to its extent, was reserved by the jurisdiction act, as found in the cases of Gorbals and Portsburgh.

Lord Balmcto having expressed a similar opinion, the cause stood over for the decision of Lord Alloway, who said, that although it was quite clear that no Judge had a right to exercise jurisdiction extra territorium, yet that full effect must be given to an established practice. The Bailies of Leith have exercised this jurisdiction beyond the memory of man. There is no court-house within the Citadel; and the uniform practice of the Bailies has been to judge of the Citadel causes. The decided cases cited for the charger leave no doubt as to the effect of this established practice.”

1822