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Subject_1Process Subject_2Remit ob contingentiam Subject_348 Geo. III. c. 151.
Facts:
An interdict having been granted in the Bill Chamber, and the passed note having been called and enrolled as a Second Division cause, a petition and complaint was thereafter presented to the First Division.
Held (diss. Lord Deas) that it was not incumbent on the First Division to remit the petition and complaint to the Second Division.
Subject_Jurisdiction — Breach of Interdict.
Facts:
Held (diss. Lord Deas) that a petition and complaint for breach of interdict is incompetent before a Lord Ordinary, and must be presented to the Inner House.
Subject_Penalty — Breach of Interdict.
Facts:
Circumstances in which held (diss. Lord Deas) that a second breach of interdict had been committed, and the person complained against fined.
Headnote:
This is a petition and complaint presented by the Right Honourable Sir John M'Neill, G.C.B., residing at Granton House, with concurrence of the Lord Advocate, for Her Majesty's interest, against Mr James Scott, merchant, Grassmarket, Edinburgh, and manufacturer of chemical manures at Granton. Sir John complains that in July, August, and September 1865 Mr Scott had been guilty of contempt of Court and breach of an
interim interdict granted by Lord Mure on 8th June 1865, whereby Mr Scott and his firm of James Scott & Company were interdicted, prohibited, and discharged from using their works at Granton “for the manufacture of chemical manures in any way which shall be a nuisance to the complainers (Sir John and others), or which shall affect the health, or
Page: 222↓
be offensive, or a discomfort to the complainers or parties residing in Granton House, Craigroyston, and Muirhouse, the residences of the complainers.” The Court had already found on 20th July 1865, in a previous complaint, that Mr Scott had been guilty of contempt of Court and of breach of the said interdict. On that occasion no fine was imposed, but the respondent was found liable in expenses. The respondent's answer to the complaint was that he had done all in his power, and incurred great expense in order to prevent discomfort to the complainer, and that even if any vapours escaped accidentally in the course of his anxious endeavours to obviate all cause for complaint, such accidental occurrences cannot be considered as a contempt of Court. He also stated his willingness to carry out any improvements which might be suggested by any man of skill to be appointed by the Court.
A proof having been allowed and led, the parties were heard thereon. At the close of the debate a doubt was suggested by Lord Deas as to whether it was not imperative on the Court to remit the process to the other Division, in respect the process in which the interdict was granted belonged to that Division. The enactment on the subject occurs in sec. 9 of the Act 48 Geo. III. c. 151, and is in these terms:—“Provided that where any action, matter, process,
complaint, or cause has been brought before one of the said Divisions, or the Lords Ordidinary thereof, the other Division, or the Lords Ordinary thereof,
shall remit any action, process, matter,
complaint, or cause,
subsequently brought before them relating to the same subject-matter, or thing, or having a connection or contingency therewith, to the consideration of the Division or Lords Ordinary before whom the first cause, action, process, complaint, or matter had been previously brought.” The Court to-day (Lord Deas dissenting) held that they were not bound to remit this case to the Second Division.
Judgment:
Lord Curriehill said—I am of opinion that, supposing we have a discretion in the matter, it is not proper for us to remit this case to the other Division at this stage of the proceedings. The petition has been presented, answers lodged, a proof allowed and led, and parties heard thereon at great length. Neither party is asking for the remit. But it is said we have no jurisdiction because the statute is imperative. I am of opinion that the statute does not apply to this case. If it did the case would be in a very extraordinary predicament. The original application for interdict was presented in June 1865. The note was passed, and interim interdict granted on 8th June 1865. The first complaint for breach of interdict was presented on 22d June 1865, and was finally decided by us, after a proof, on 20th July 1865. The interdict process did not depend in the Outer House until 18th July 1865, when it first appeared in the printed roll. If, therefore, the statute applied, the interdict process should have been remitted to the first breach of interdict process, because the former was not brought before the Lord Ordinary in the Outer House until some time after the latter. There was nothing done in the interdict process in the Outer House from 18th July till 9th December 1865, and it was betwixt these dates that this second breach of interdict complaint was presented. It was presented on 23d November 1865. Was it then on that day incumbent on us to remit this complaint to Lord Barcaple in the Outer House? Consider what the complaint is. It is of the nature of a criminal proceeding, which is competent only in the Inner House, and must be presented with the concourse of the Lord Advocate, who is no party to the other action. I think therefore, that we could not have competently remitted, the complaint to Lord Barcaple, because he had no jurisdiction to deal with it. The interdict process continued to depend before Lord Barcaple until 14th February 1866, when his Lordship reported it with proposed issues to the Second Division. Is it to be said that from that moment we lost the jurisdiction to deal with this complaint, which up till that day we possessed? Was it then incumbent on us to remit the case to the Second Division? I think not. But farther, on 13th March 1866 the Second Division approved of the issues, and remitted the case back to Lord Barcaple, before whom it is at this moment, and it may possibly never again return to the Second Division.
Lord Deas said—It appears to me that our jurisdiction to deal with this complaint depends on section 9 of the Act separating the Court into two divisions. If this complaint comes within that section, it is imperative upon us to remit it to the other Division. The question is, whether it does. I have no idea that this complaint is competent only in the Inner House, nor is it at all correct to say that the first breach of interdict complaint depended before the interdict process itself. It was the dependence of the interdict that made the complaint competent. It might have been presented to the Lord Ordinary, being just a complaint for contempt of Court. Such applications were made to the Lord Ordinary in the case of Spalding, 7th July 1836 (
14 S. 1102), and the recent case of
Paterson v. Kilgour, 19th July 1865 (
3 Macq. 1119). But I have no doubt either of the competency of applying to the Inner House. We have here nothing to do with the first application for breach of interdict; the question is, whether the interdict process or the present complaint was first in dependence. Now, the note of suspension and interdict was passed, and interim interdict granted, on 8th June 1865. We all know that a respondent in a suspension is entitled to fix the Division in which it is to depend within twelve days after the note is passed, and if he does not do so the suspender is entitled to fix it. The moment the Division is so fixed, the process becomes a depending one in the Division marked upon it. Well, this suspension was called as a Second Division cause on 29th June 1865, and the present complaint was not presented until 23d November 1865. It is therefore quite clear that the interdict process became a Second Division cause long before this complaint was presented. His Lordship referred, in support of his views, to the cases of
Gordon v. Cunninghame, 15th December 1827 (
6 S. 257);
A. B. v. Graham, 21st November 1829 (
8 S. 113); and
Clelland v. Clason and Clark, 27th July 1850 (
7 Bell's App. 153).
Lord Ardmillan concurred with Lord Curriehill. The question was undoubtedly one in which the Court had no discretion if the objection was well founded. The view he took was that this complaint being a proceeding of a very peculiar character, it was not competent before the Lord Ordinary. He knew of no case in which such a proceeding had been held competent in the Outer House. When that complaint was presented the other process was before Lord Barcaple, and the Court could not then have denuded itself of jurisdiction by remitting it to the Lord Ordinary, who had no jurisdiction. There was no cause in the Inner House at the time to which the complaint could have been remitted, and there is no such cause in the Inner House at this moment. If this complaint, therefore, was presented to a tribunal which was then, and is now, the appropriate tribunal, his Lordship thought that what occurred in the interval did not affect the matter.
The Court then proceeded to advise the case on the merits. They found (Lord Deas dissenting) that the respondent had been guilty of breach of interdict on 22d, 24th, and 31st July 1865, and he was fined in £5, to be paid to the Clerk of Court, for the benefit of the Royal Infirmary. He was also found liable in expenses. The other acts of breach of interdict alleged were found not proved.
Lord Curriehill was of opinion that the first three breaches must be held to be proved. The complainer and the witnesses adduced by him proved distinctly that an offensive smell was felt on these occasions, which proceeded from the respondent's works. The allowing of that was a breach of the interdict.
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It must have arisen either from defective apparatus or negligence in management. His Lordship thought that Mr Scott was entitled to credit for the attempts which he had made, at considerable expense, to remove the cause of complaint. He was satisfied that Mr Scott was not actuated by any wish to annoy his neighbours, but he had subjected himself to a second complaint for breach of interdict; and but for his conduct since July this would be a very aggravated case. It was therefore necessary to mark the opinion of the Court by the imposition of a small fine.
Lord Deas was of a different opinion. He thought that in order to constitute the offence charged it was necessary that there should be a wilful contempt of Court. It was impossible to say that if the smell in July arose from inattention or accident there was a contempt of Court. His Lordship thought that the difficulty of the case arose from the terms of the interdict, which were much too vague. It did not prohibit the works; on the contrary, it implied a permission to carry them on In regard to the smell on the 31st July, it was clearly proved that it had been caused by the temporary emptying of a digester, which was thought necessary by Professor Penny, who had been employed by the respondent to devise means for removing the offensive smell. It was a strong thing to say that a man was committing a contempt of Court when in the very act of taking measures to obey it; and these measures seem to have been successful, for it is not proposed to hold that any of the breaches alleged after 31st July have been proved.
Lord Ardmillan concurred with Lord
Curriehill. The
Lord President declined, being a brother of the complainer.
Counsel:
Counsel for Complainer—
Mr Patton and
Mr Cook. Agent—
Mr William Sime, S.S.C.
Counsel for Respondent—
Mr Gordon and
Mr Scott. Agent—
Mr J. G. C. Peebles, S.S.C.
