Scottish Court of Session Decisions

This action was brought by the pursuer, a tailor in Stonehouse, against the Duke of Hamilton and two of his gamekeepers, James Wood and John Tait, concluding for £200, as reparation for loss, injury, and damages for personal injuries and for the value of a greyhound belonging to the pursuer. He averred that the defenders Wood and Tait, then in the employment of the Duke of Hamilton, and acting with his authority, or at least for his behoof, fired at him (the pursuer) on the turnpike road near Stonehouse, killing his dog and wounding him.

The defenders Wood and Tait denied the pursuer's averments, and required the pursuer “to specify which one of the defenders he alleges fired the shot libelled, and to condescend upon the acts by which it is alleged that the defenders aided and abetted each other.”

The Duke of Hamilton pleaded—“(1) There being no sufficient averment that the present defender either did the acts complained of or gave any instructions or authority to the other defenders to do them, the action, so far as directed against the present defender, is irrelevant. (2) The act complained of being, and being alleged to be, of a criminal character, the present defender cannot be made liable therefor merely on

Page: 569↓

the ground that the other defenders were in his employment as gamekeepers, or without proof of special instructions. (3) The defenders at the time complained of not having in point of fact been employed in performance of their duties as the present defender's gamekeepers, nor at the time alleged on his estates, there are no grounds for the conclusions directed against him.”

The Sheriff-Substitute ( Spens) pronounced the following interlocutor:—“The Sheriff-Substitute having heard parties' procurators on the preliminary pleas, sustains the preliminary plea stated for the Duke of Hamilton, in respect there are no averments stated relevant to infer liability as against him, and assoilzies him from the conclusions of the action.”

On appeal the Sheriff repelled the preliminary pleas for the Duke of Hamilton, reserving them in so far as they might affect the merits, allowed a proof, and added to his interlocutor this note— “The summons is not framed on the best model, but the Sheriff thinks that it is sufficient to raise the issues (1st) whether either of the defenders Tait and Wood did the wrong in question; (2d) whether the other aided or abetted him in it; and (3d) whether in so doing they acted by the instructions or with the authority of the Duke of Hamilton. If such joint actings or co-operation is proved against Wood and Tait, and instructions or express authority to them so to act is proved against his Grace, it is difficult to see why the pursuer should not obtain decree against all the defenders.”

The pursuer appealed to the First Division, and proposed these issues—“(1) Whether, on or about the 5th day of November 1875, and on, at, or near the turnpike road leading from Glasgow to Carlisle, about a mile distant from Stonehouse, in the county of Lanark, the defenders James Wood and John Tait, or one or other, and which of them, wrongfully shot at the pursuer's dog, ‘Dolly Varden,’ whereby the said dog was killed and the pursuer wounded, to the pursuer's loss, injury, and damage? (2) Whether, on or about the 5th day of November 1875, and on, at, or near the turnpike road leading from Glasgow to Carlisle, about a mile distant from Stonehouse, in the county of Lanark, the defenders James Wood and John Tait, or one or other of them, acting in the employment of the defender his Grace the Duke of Hamilton and Brandon, wrongfully shot at the pursuer's dog ‘Dolly Varden,’ whereby the said dog was killed, and the pursuer wounded, to the pursuer's loss, injury, and damage. (3) Whether, on or about the 5th day of November 1875, and on, at, or near the turnpike road leading from Glasgow to Carlisle, about a mile distant from Stonehouse, in the county of Lanark, the pursuer's dog ‘Dolly Varden’ was killed, and the pursuer wounded, through the fault of the defenders his Grace the Duke of Hamilton and James Wood and John Tait, or one or more, and which of them, to the pursuer's loss, injury, and damage? Damages laid at £200.” No objection was made to the first of these by the defenders Wood and Tait, but it was argued that there were not any averments made on record sufficient to ground the second and third issues against the Duke of Hamilton.

At advising—