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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Watt - Warre - Noland v. David Blair, The Trustees for Fisheries, &c., in Scotland, and J. Campbell and T. Williamson - Giffor - Moncreiff [1821] UKHL 1_Shaw_48 (25 June 1821) URL: http://www.bailii.org/uk/cases/UKHL/1821/1_Shaw_48.html Cite as: [1821] UKHL 1_Shaw_48 |
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Page: 48↓
(1821) 1 Shaw 48
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
2 d Division.
No. 16.
Subject_Reparation — Trustee —
Held,—1.—(reversing the judgment of the Court of Session,) that an allegation against a defender of having instigated other parties to do an injurious act to the pursuer, was competent to be proved, although these parties were not called as defenders; and,—2.—(affirming the judgment of the Court of Session,) that gratuitous trustees, acting bonâ fide in the supposed discharge of their duty, were not liable in damages.
In August 1808, Watt having imported into Dundee a quantity of linseed, Blair, one of the officers of the Trustees for Manufactures, &c. in Scotland, presented a petition to the Sheriff of Forfarshire, stating that he had lately surveyed the linseed, which he found to be bad, and as such prohibited by the statutes 3d Geo. I. c. 7, 13th Geo. I. c. 26, and 24th Geo. II. c. 31, from being imported or sold, or exposed to sale in Scotland; that Watt was about to sell it to be exported to Ireland; and praying to have it condemned, and the penalties provided by the above statutes awarded to him. After various proceedings before the Sheriff, it was agreed to have the quality of the linseed ascertained by inspectors mutually chosen. This having been done, the inspectors reported that one parcel was good, and recommended the vegetative powers of the other to be ascertained by experiment. Blair, however, insisted upon a proof; and the Sheriff, upon advising it, found the one parcel to be good, which he authorized Watt to sell, and directed the above experiments to be made on the other. Against this judgment Blair entered an appeal to the Circuit Court of Perth, which was objected to as incompetent; because, although an appeal was permitted by the statutes against a sentence condemnatory, none was allowed where there was a decree of absolvitor. A judicial arrangement was then made, by which Watt agreed that the parcel which had been found good by the Sheriff should be exported, or sold for crushing into oil; that he should abide by the result of an experiment to be made on the other parcel; and that if it should be found not to be fit for sale, then he should dispose of it in the above manner. In this Blair acquiesced, and the Court, (without prejudice to this arrangement,) certified the case to the High Court upon the question of competency. Eight months having elapsed, and no further proceedings having been taken in the appeal, it fell in terms of a provision in the above statutes. A new seizure was
Page: 49↓
Watt thereupon brought an action in the Court of Session against Blair, stating that all the proceedings had been resorted to oppressively, and at a time when there was a great scarcity of linseed, and a high price was given for it; that Blair was himself a dealer in linseed, and was actuated in his whole conduct by a spirit of rivalry; that when the cargo in question arrived, he had been called on to examine it, but had failed to do so; that, on subsequently being directed by the Trustees to do so, samples had been delivered to him for the purpose of ascertaining its quality; but that, being desirous to prevent the linseed from being brought into the market, he, instead of examining, had seized it; that, with the same view, he had maintained the litigation before the Sheriff Court, and entered an incompetent appeal to the Circuit Court; that the second seizure had been made by Campbell and Williamson at his instigation; and that, by this illegal conduct on the part of Blair, he had been prevented from selling the wheat at a time when a very high profit could have been obtained. He therefore concluded for £10,000 as the damages which he had thus sustained. Lord Newton, on the 14th of December 1810, found, “In respect the seed libelled on was imported into Dundee as crushing seed, and attempted to be sold by the pursuer as sowing seed, that the defender David Blair was in bonâ fide to make the seizure, and subsequent appeal to the Circuit, and take the other steps which he did, till a second seizure was made by Campbell and Williamson: And in respect he has not called Campbell and Williamson as defenders in this action, finds it is not competent to prove that the defender instigated
Page: 50↓
Watt having appealed against these interlocutors, the House of Lords “Ordered and adjudged, that so much of the said interlocutor of the Lord Ordinary, of the 14th December 1810, as finds that, in respect the appellant had not called Campbell and Williamson as defenders in that action, it was not competent to the appellant to prove that the respondent Blair, the defender in that action, instigated and abetted them, and therefore assoilzied the defender from the conclusions of the libel, and decerned, be reversed: And it is further ordered and adjudged, that the cause be remitted back to the Court of Session, to review as well the rest of the said interlocutor of the 14th December 1810, as the interlocutor of the 21st February 1812, and the interlocutor of the 17th November 1812, except such part of the said interlocutor of the 17th November 1812 as absolves the Board of Trustees, which part is hereby affirmed; and, upon such review, to do in both actions as shall be just.”
_________________ Footnote _________________ * Not reported.
Page: 51↓
“That in consequence of the improper, illegal, and oppressive proceedings above detailed, instituted, promoted, and carried on by the said David Blair, or through his means, the pursuer not only lost the whole of the last season in the disposal of his linseed, and in which it might have been sold for great profit and advantage; but, from the great importation into Scotland during the present year, the price of that article has decreased so much, that the pursuer had no hope of selling the said linseed at a price equal to its original cost; he, therefore, upon the 7th day of April (then) last offered delivery of the said two cargoes of linseed to the said David Blair under form of instrument, and protested that he should be liable to him, the said pursuer, in the highest price at which the pursuer might have sold the said linseed since the importation thereof.”
The summons therefore concluded, “That the said David Blair ought and should be decerned and ordained to make payment to the pursuer of the sum of £10,000 sterling, or such other sum, less or more, as should be ascertained to be the just and true amount of the loss, damages, and expenses incurred, or to be incurred, by the pursuer, by and through the conduct and proceedings of the said David Blair.”
In the proceedings upon the summons, it became matter of contention whether it was to be considered as in the nature of an action of trespass in England; that is, if the seizure was illegal, whether the officer was not liable, whether he acted maliciously or not in making it; or whether it was to be considered as in the nature of an action upon the case in England; that is, whether, though the seizure should have been illegal, the officer was liable if he acted bonâ fide, or without malice.
It is to be remarked, that this action was against Blair only, not merely on account of the first, but also on account of the second seizure, and that neither the Board of Trustees, nor Campbell and Williamson, were made parties to it; and that, when it came before Lord Newton, a Judge of great eminence, he pronounced this interlocutor:
“Having considered the libel and defences, and beard parties”
procurators—in ‘respect the seed libelled on was imported as crushing seed,’ (his Lordship observed this was a mistake—no seed could by law be imported as crushing seed,) “and attempted to be sold by the pursuer as sowing seed;” (this also his Lordship observed was not 60,) “Finds the defender David Blair was in bonâ fide” (so that Lord Newton considered this as if it were an action on the case, and as if the officer acted bonâ
Page: 52↓
Upon this interlocutor several questions presented themselves.
1. Whether Blair acted bonâ fide?
2. Whether, if he acted bonâ fide, he would thereby be liberated from the consequences?
The Lord Ordinary finds that Blair was in bona fide to make the seizure, and take the other steps which he did, till the second seizure was made; so that his Lordship seems to think a distinction was to be made between the first and the second seizure. Whether Blair was in bona fide, after the second seizure, Lord Newton gives no opinion, but says, “In respect he has not called Campbell and Williamson as defenders in the action, finds it not competent to prove that the defender instigated and abetted them.”
This is the interlocutor first appealed from; and even supposing Blair was in bona fide till the second seizure, I doubt whether this interlocutor was sound, in alleging that, “in respect the pursuer has not called Campbell and Williamson, it is not competent to prove that the defender instigated and abetted them.” (His Lordship here read the words of the summons, in so far as it relates to the aiding and abetting.) If A. instigate B. to abet him in an illegal act, I am not prepared to say that he was not a person that might be sued for damages by reason of such illegal acts. I therefore doubt the soundness of Lord Newton's interlocutor in this respect. If Campbell and Williamson were the instruments of Blair, he was bound to indemnify them for these acts in which they were his instruments. It therefore does not appear to me that it was necessary to bring these parties before the Court. But all parties were brought before the Court. A difficulty was thus introduced in the case, which otherwise would not have arisen.
On the 21st February 1812, an interlocutor was pronounced by the Second Division of the Court of Session, which was the second interlocutor appealed from. It was pronounced before the Board of Trustees and Campbell and Williamson were made parties. The ratio of the interlocutor is not stated. It merely sustains the defences, and assoilzies the defender. Whether it followed the ratio given in Lord Newton's interlocutor, or proceeded upon other grounds, as well as the grounds therein stated, does not appear.
After this, the appellant brought bis action against the Board of Trustees and Campbell and Williamson, with conclusions in the summons against these parties similar to those in the summons against
Page: 53↓
The interlocutor pronounced after these minutes were given in, was in these words, (17th November 1812:) “The Lords having resumed consideration of this petition, with the answers, the process against the Board of Trustees at the instance of the petitioner, and minutes given for both parties, of consent conjoin that process with the original action; and having advised the whole, refuse the desire of the petition, and adhere to the interlocutor therein complained of; assoilzie the Board of Trustees from the supplementary action, but find no expenses due to the Board, and decern.”
A difficulty arose, of this nature. The first summons was against Blair only: The second summons was against the Board of Trustees and Campbell and Williamson, but prayed nothing against Blair; and when the Court came to pronounce their interlocutor, that interlocutor does not assoilzie Blair, leaving, as I suppose, the former interlocutor to remain in this respect. The interlocutor assoilzies the Board of Trustees, but does not assoilzie Campbell and Williamson. At first, I conceived this must have been a mistake; but, upon looking at the certified papers, I find the interlocutor correctly stated.
It might be according to the form of proceeding in the Court of Session, (and I do not mean to say it was not,) that there was an end of the action against all the parties; but, according to the view I have been enabled to take of the matter, (and I have been enabled to obtain information elsewhere,) I am unable to find that this action was brought to a conclusion against Campbell and Williamson, or against Blair, unless it was to be so inferred from the former interlocutor.
In these circumstances, I do not see how this interlocutor makes an end of the cause. If it had assoilzied all the parties, then the House would have had to consider whether it was right in so doing. But as it had not done so, perhaps the most respectful way would be to remit, with some findings, which I propose to embody in the shape of a judgment, to be submitted to the House.
In the next place, his Lordship observed, that these acts were defective,
Page: 54↓
Another circumstance was, that if there were to be such proceedings upon these acts of Parliament, which were to endure for such a period of time as bad happened in the present case, seed which might be fit for use at the period of a first seizure, might be unfit for use at the period of a second; not to mention that the season might be lost for sowing at a time when the seed was fit for it.
His Lordship, therefore, submitted it to the consideration of the Trustees, whether some general act should not be brought into Parliament, combining all these acts, and providing for all the difficulties that had arisen in the present case, because otherwise the present acts might be used as instruments of oppression.
Solicitors: A. Mundell,— Spottiswoode and Robertson,—Solicitors.
( Ap. Ca. No. 30.)
