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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Bowie v. The Marquis of Ailsa [1887] UKHL 228 (18 November 1887)
URL: http://www.bailii.org/uk/cases/UKHL/1887/26SLR0228.html
Cite as: [1887] UKHL 228, 26 ScotLR 228
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SCOTTISH_SLR_House_of_Lords
Page: 228↓
House of Lords.
v.
(Ante, March 18, 1887, vol. xxiv. p. 456, and 14 R. 649.)
Subject_Appeal to House of Lords — Petition for Leave to Appeal in forma pauperis — Public Right.
Facts:
In an action for declarator that the pursuer as a member of the public had right to fish with rod and line in a river on the defender's property, the Court of Session assoilzied the defender. In a petition for leave to prosecute an appeal to the House of Lords in forma pauperis, the Appeal Committeee refused the petition.
In the Court of Session 18th March 1887, vol. xxiv. p. 456, and 14 R. 649.
James Bowie, who was an upholsterer in Glasgow, afterwards residing in Ayr, was apprehended on the night of 11th August 1884 by Robert Armour, water-bailiff to the Marquis of Ailsa, on a charge of poaching in the river Doon. In October following Bowie raised an action in the Sheriff Court at Ayr against the Marquis, calling Armour also as a defender, in which he prayed the Court “to find and declare that the pursuer as a member of the public has an undoubted right and privilege of fishing with single rod and line for trout, flounders, eels, and other fish which are not salmon, sea-trout,” &c., “in the river Doon, at least in that part of it within the tidal influence of the sea,”—then followed a prayer for interdict.
The Sheriff ( Brand) assoilzied the defender.
The pursuer appealed.
The Second Division having doubts as to the competency of the action in the Sheriff Court, agreed to allow the action to stand over to give Bowie an opportunity of bringing an action in the Court of Session. Bowie then raised an action in the Court of Session, concluding for declarator “that the pursuer as a member of the public has right to fish with single rod and line for trout,” &c.
The Second Division on 18th March 1887 assoilzied the defender in both actions.
The pursuer presented a petition to the House of Lords for leave to prosecute an appeal in forma pauperis.
The respondent's agent objected, on the ground that the appellant was trying a question of public right, and that a committee had been appointed to collect subscriptions to assist Bowie in the litigation.
In the Sheriff Court action the pursuer, when examined as a witness, deponed—“I gave instructions for carrying on this case, and it is carried on under my responsibility, and I am not aware that any subscriptions have been promised. I should be very glad of subscriptions.”
Alexander Mitchell, fishing-tackle maker, in cross-examination deponed—“I have agreed to subscribe to help to carry on this case. A subscription-sheet was drawn up, and I put my name to it. The sheet did not specify the sums
Page: 229↓
The agent for the appellant read affidavits to the effect that the appellant had raised this action for his own protection, and relying on his own resources, in consequence of the criminal process against him by the Marquis of Ailsa for fishing in the tidal waters of the Doon, and that he was not prosecuting this appeal on behalf of the public or of any person other than himself.
This decision was reported to the House and agreed to.
Solicitors: Agent for the Pursuer (Appellant)— J. B. Allan.
Agent for the Defender (Respondent)— W. A. Loch.
This decision was followed by the Appeal Committee on 6th July 1888 in the appeal of Fauld and Others v. Vere and Others (Court of Session January 28, 1887, 14 R. 425), where the appellants representing the public were defenders in an action brought by the pursuers for declarator that there existed no public right-of-way over certain roads—See L.R., 13 App. Cas, 372, note.