Magistrates of Dingwall and Others - Lord Advocate (Jeffrey - Lushington v. Honorable Mrs. Hay M'Kenzie, with concourse of His Majesty's Advocate [1831] UKHL 5_WS_351

UKHL
Magistrates of Dingwall and Others - Lord Advocate (Jeffrey - Lushington v. Honorable Mrs. Hay M'Kenzie, with concourse of His Majesty's Advocate
[1831] UKHL 5_WS_351
Circumstances in which (affirming the judgment of the Court of Session with a qualification) an interdict was renewed against fishing in part of a river, and although no prayer to that effect was contained in the petition of complaint.In 1825, Mrs. Hay M'Kenzie, as heritable proprietrix of the fishings in the river Conon, brought an action against the Magistrates

Page: 352 ↓

In the course of the preparation of the cause the Lord Ordinary, on the 11th of March 1828, pronounced this interlocutor:
“The Lord Ordinary, having heard counsel for the parties upon the whole cause, and in particular upon the demand now made for an interdict against the defenders to fish above the march between the lands of Balblair and Breakenord, in respect it is averred that the defenders have been fishing above the said march, which, by their admissions on the record, they are not entitled to do, in the meantime prohibits, interdicts, and discharges the said defenders, or any of them, their tenants, servants, fishers, or dependents, from fishing or killing salmon in any part of the river Conon above the line delineated on the plan in process as the march between Balblair and Breakenord; but in respect, the defenders do not admit that the said line is accurately laid down in the plan, without prejudice to the parties to ascertain the exact march between Balblair and Breakenord before the interdict is declared perpetual, grants diligence at the defenders' instance against havers, for recovering the printed informations in the case which depended between the commissioners of the annexed estates and the Magistrates of Dingwall, founded on as res judicata by the defenders, or copies of these informations, &c.”
The magistrates having, as was alleged by Mrs. M'Kenzie, continued to fish above the march, and particularly in two pools called Pool-Oure and Pool-Breakenorde, she, with concourse of the Lord Advocate, presented a petition and complaint against the magistrates, alleging that they had violated the interdict, and praying to have it found that they “had been guilty of a contempt of court and breach of interdict, and in respect thereof to find and amerciate the said defenders in the sum of 200 l . sterling,

Page: 353 ↓

The Magistrates of Dingwall and others appealed against this interlocutor.

Page: 354 ↓

Appellants .—Although the redress sought by the respondents is confined to a demand for fine, imprisonment, and damages, yet the Court below have by the interlocutor complained of, without any prayer to that effect, renewed the interdict granted by the Lord Ordinary, have extended it beyond its original terms so as to make it applicable to Pool-Oure and Pool-Breakenord, and have ordered an account of the fish to be kept. The interlocutor, therefore, is clearly ultra petita, is inapplicable to the true state of the rights of the parties, and amounts in effect to a new interdict, different from the original one, for the alleged breach of which alone the complaint was presented. Besides, there was no sufficient evidence laid before the Court to justify them in prohibiting the appellants from fishing in the pools. Indeed, a remit is made to the Jury Court which necessarily assumes that the facts require to be investigated, and therefore it was premature and incompetent to issue such a prohibition.Respondents .—It was within the power of the Court below, under the complaint, to regulate the interim possession until the matter of fact should be ascertained as to whether there had been a violation of the interdict; and as there was sufficient evidence to satisfy the Court that it was at least doubtful whether the pools were not situated above the march, it was competent for them to prohibit the appellants from fishing there, and to order the respondent to keep an account of the fish which she might there catch.But assuming that the Court proceeded on the feeling that the appellants had been guilty of a breach of interdict, they were not called on either to fine or imprison, but might competently issue a more mitigated judgment, of which the appellants can have no reason to complain. The proof which was adduced was sufficient to establish that the pools were situated above the march; and as it is admitted that the appellants fished there, they were guilty of a breach of interdict.Lord Chancellor .—My Lords, this case has now resolved itself into a mere question, with respect to the costs of the present appeal; because as to every thing in the Court below, the whole proceeding appears to be put an end to, in consequence of some considerations unnecessary now to discuss, as they have occurred since the appeal. In this view we must consider the case as it was, when the interlocutor

Page: 355 ↓

Page: 356 ↓

The House of Lords ordered and adjudged, That the interlocutors complained of be affirmed, with this declaration, that the mention of Pool-Oure and Pool-Breakenord, in the said interlocutors complained of, shall not prejudice, bind, or at all affect the question touching the course of the boundary line, nor decide whether the said line was below or above the said two pools.Solicitors: Richardson and Connell,— Moncrieff, Webster, and Thomson,—Solicitors.