Scottish Court of Session Decisions

Lieutenant-Colonel Home Drnmmond, of Blairdrummond, and others, raised an action in the Sheriff Court at Alloa against Henry M'Lachlan, fisherman, Alloa.

The pursuers prayed the Court to find that the defender “has committed a breach of the interdict granted by the Court on 18th August 1902, and made perpetual on 21st October 1903, in the action at the instance of the pursuers to have the said defender and certain other persons restrained from fishing by themselves, or by others acting under their direction, for salmon or fish of the salmon kind in any part of the river or estuary of the Forth with the nets known as drift nets or hang nets, and from placing or setting nets of that description in any part of the said river or estuary, and that he has thereby been guilty of a contempt of Court; to fine and amerce the defender in the sum of twenty pounds, or such other sum as the Court shall think fit in the circumstances or otherwise, or failing payment by the said defender of such fine, to adjudge him to be imprisoned for such period as the Court shall appoint, and to find him liable in expenses.”

The defender pleaded—“(1) The defender not having fished in the manner condescended on by the pursuers should be assoilzied with expenses. (2) The before-mentioned interdict not having been intimated and being unknown to the defender he was not acting in breach or disregard thereof, and the action should be dismissed with expenses.”

The Sheriff-Substitute ( Dean Leslie) on 28th November 1906, after a proof, pronounced the following interlocutor, which, with the note appended, contains the material facts of the case:—“Finds (1) that on 18th August 1902 a petition was presented in this Court praying for interdict against the respondent and others from fishing by themselves or by others, having the authority and consent of all or any one or more of them, for salmon or fish of the salmon kind in any part of the river or estuary of the Forth, with the nets known as drift nets or hang nets, or from placing or setting nets of that description in any part of the said river or estuary; (2) that on said 18th August 1902 interim interdict, as craved, was granted; (3) that appearance was entered and defences lodged by the respondent; (4) that said interim interdict has not been recalled; (5) that on 17th July 1906 the respondent fished for salmon or fish of the salmon kind in the river Forth, between Kelliebank, North Alloa, and Alloa Inch, in the parish of Alloa and county of Clackmannan, with a drift or hang net in the manner interdicted: Therefore finds that the respondent has broken the interim interdict granted on 18th August 1902, fines the respondent Henry M'Lachlan the sum of five pounds sterling, and failing payment within seven days decerns and adjudges the said respondent to be imprisoned for the space of one month from the 7th day of December 1906, and thereafter to be set at liberty … and decerns.”

Note.—[ After dealing with the evidence showing that the defender had on 17 th July 1906 fished with a drift or hang net the Sheriff proceeded]—“But even if engaged in drift net fishing on 17th July 1906 the respondent contends that there is no valid interdict standing against him, and that whatever interdict there may be he had not at the date in question received proper intimation thereof. On the first point respondent's contention is good to the extent that the interdict as made perpetual on 21st October 1903 is invalid.

“In the process— Home Drummond v. Mackenzie and Others, including the respondent—no step was taken between the dates of the interlocutors on 3rd October 1902 closing the record and the interlocutor of 7th October 1903, when on the pursuer's motion the case was appointed to be enrolled. The process had therefore fallen asleep. The interlocutor of 7th October 1903 cannot be accepted as having properly wakened it; therefore the interlocutor following thereon, which declares the interdict perpetual, is inept. An interim interdict, however, does not lose its effect by the falling asleep of the process— Hamilton v. Allan, 1861, 23 D. 589—and, in my opinion, the later proceedings though inept do not prejudice it. As to the second point, the intimation of 27th July 1906, in virtue of extract decree reciting the interdict of 21st October 1903, is of no avail both because of its date being later than that of the breach complained of and of the invalidity of the decree intimated. The respondent took objection to the production and use, as evidence, of the process in Home Drummond v. Mackenzie and Others, in respect that it had not been produced before the proof, and that the petitioners by producing in process the extract decree of interdict of 21st October 1903 founded upon it and ought therefore to be restricted as to proof of the interdict to that extract. To this I think the answer of the petitioners is sufficient, namely, that the process is founded upon in the petition and was not in their hands, but in the hands of the Sheriff Clerk, where it was equally available to both parties; and that though they may fail in proving their case in one way it does not follow that they are to be debarred from proving it in another. The process— Home Drummond v. Mackenzie and Others—proves that interim interdict was granted against the respondent on 18th August 1902, and there is no evidence that it has been recalled. This interim interdict was duly intimated, and that it was well known to the respondent must be presumed from his entering appearance, lodging defences, and taking part in the closing of the record in the case— Henderson v. Maclellan, May 23, 1874, 1 R. 920. The respondent must have been well aware of the interdict, and by fishing as he did he deliberately committed a breach of the order of this Court, and that cannot be tolerated.”

The defender appealed to the Sheriff ( Lees),

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who on 9th February 1907 recalled his Substitute's interlocutor and found that the defender had broken the interdict made perpetual on 21st October 1903.

Note.—“It is not doubtful that the defender disobeyed the interdict that was granted. But it was urged that the final decree of interdict was incompetent—that the cause had fallen asleep. I am afraid I cannot enter on any question of this kind. This is not the process in which to impugn the regularity of the former decree. I must assume it to be good. Nothing was said in regard to the punishment awarded by the Sheriff-Substitute. I have therefore repeated it. It was also urged that the defender was not cognisant of the interdict. But he knew of the interim interdict, and he does not suggest it was recalled, and he continued a party in the process. Henderson v. Maclellan is therefore fatal to this plea.”

The defender appealed, and argued—-(1) It was not proved that the net used was a drift net. (2) No step having been taken in the process between 3rd October 1902 and 7th October 1903 the cause had fallen asleep—Sheriff Courts Acts 1876 (39 and 40 Vict. cap. 70), section 49—and consequently the interlocutor of 21st October making the interdict perpetual was inept, and the infringement of it could not be complained of— Clark v. Stirling, June 14, 1839, 1 D. 955, Lord Cockburn, at p. 984. (3) There was no evidence that interim interdict was ever granted. But assuming it had been granted, it had been brought to an end by lodging defences— Hamilton v. Allan, February 16, 1861, 23 D. 589, Lord Justice-Clerk Inglis, at p. 591.

Argued for the pursuers—(1) The defender had fished with a drift net in breach of the interdict. (2) There was standing against the defender an ex facie regular decree of a competent Court, the interlocutor of 21st October making the interdict perpetual, and that could not be set aside by way of exception— Neil v. M'Nair, June 7, 1901, 3 F. (J.) 85, 38 S.L.R. 804. (3) The former process which defender relied on as establishing that the cause had fallen asleep established that the interim interdict was granted, and it, at any rate, was still in force. An interim interdict subsisted until it was recalled or competently set aside— Clippens Oil Company, Limited v. Edinburgh and District Water Trust, March 20, 1906, 8 F. 731, 43 S.L.R. 540, June 11, 1907, 44 S.L.R. 669—and was not brought to an end by the process falling asleep— Hamilton v. Allan ( cit. sup.). If the dictum of Lord Justice-Clerk Inglis had the meaning contended for by defender it was inconsistent with the earlier part of his opinion and with existing practice, whereby the Lord Ordinary in the Bill Chamber on passing the note continued the interim interdict, thereby treating it as subsisting. In any case the dictum even if sound referred only to answers in the Bill Chamber and not to defences in the Sheriff Court. It must be presumed that a party to the scause who had entered appearance and lodged defences was aware of the interdict— Henderson v. Maclellan and Others, May 23, 1874, 1 R. 920, 11 S.L.R. 531.

At advising—