The Caledonian Railway Company and Others, Directors of the Company v. James Hamilton of Kames, with consent of James McInnes, with concourse of His Majesty's Advocate [1850] UKHL 7_Bell_272

UKHL
The Caledonian Railway Company and Others, Directors of the Company v. James Hamilton of Kames, with consent of James McInnes, with concourse of His Majesty's Advocate
[1850] UKHL 7_Bell_272

[ Heard and Judgment 3rd August , 1850 .]

Subject_ Interdict. —

An interdict against interference with property must be obeyed until it is recalled, and a breach of it will not be justified by proceedings taken by the party interdicted, which in his opinion had transferred the property to himself.

Subject_ Ibid. — Jurisdiction. —

The Court of Session has power to punish any breach of its interdict by fine, with the view of punishment of the breach as a contempt of Court, but in imposing the fine, regard should be had to the motives of the party complained against.In the month of February, 1847, the Respondent presented a note of suspension and interdict against the Appellants, setting forth that they, by their contractors and workmen, had entered upon his property, pulled down some houses upon it, and commenced cutting a road through it, although no notice had been served upon him by the Appellants, either prior to, or after obtaining the Act under which they were constituted, and praying the Court “to suspend the proceedings complained of, and to interdict, prohibit, and discharge the said Respondents from further entering upon the complainer's plot of ground in the town of Crawford, as lately possessed by David Murray, as tenant, referred to in the annexed Statement of Facts, for which he has not had any notice as proprietor, either previous to the said Respondents applying for their Act of Parliament, nor scheduled by the said Company in any notice under the

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After some proceedings in the Bill Chamber, not necessary to be noticed, the Lord Ordinary, on the 6th March, pronounced the following interlocutor:—
“In respect of the titles in favour of the Complainer exhibited at the Bar, and admitted to have been delivered yesterday by one of the Agents of the Railway Company who had possession of the same as agent for Mr. McInnes, trustee of Mr. Hamilton; in respect the Complainer is not scheduled under the statute as proprietor of the lands in question, and that no notice under the said statute was even given him thereanent; in respect no title to the lands is alleged by the Railway Company to have been acquired by them from any person whatever, and that it is admitted at the Bar that no price was paid to David Murray or any other person therefor; and in respect there is no evidence of the Suspender having given possession of the land in question to the Railway Company, and that he avers he has been in possession thereof through his tenants or otherwise since the date of his title in 1810; passes the note, and grants the interdict as craved.”
The Appellants presented a reclaiming note against this interlocutor, but having permitted the statutory period for doing so to elapse, they were unable to proceed upon it. The Appellants, then, on the 23rd and 31st of March, served notices upon the Respondent under the 7th section of the Railways Clauses Consolidation Act, that they intended to apply to the Sheriff to correct the Books of Reference. On expiry of this notice, they presented such an application; setting forth that in consequence of representations by the Respondent that Nos. 176 and 177 on the plan of the railway, of which numbers David Murray was entered as the owner, truly belonged to him.

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On the 20th of April the Respondents further served a notice upon the Respondent under the Lands Clauses Consolidation Act, to the effect that Nos. 176 and 177 on the railway plan would be required by them, and that they were ready to treat with him for the purchase, and that, if within 21 days a treaty were not entered upon, the compensation would be ascertained in the manner provided by the statute.The Respondent lodged formal objections to this notice, one of them being that the matter was sub judice in the Court of Session, by the application for interdict.Without abiding the result of this proceeding, the Appellants, under the 84th sect. of the Lands Clauses Consolidation Act, presented an application to the Sheriff, on the 12th of April, praying him to nominate a valuator of the ground in question. The Sheriff granted the prayer. The valuator appointed by him valued the ground at 60 l . The Appellants deposited that sum in the bank, and at the same time granted bond for a like amount to the satisfaction of the Sheriff.Assuming that these proceedings had vested the property of the land in themselves, the Appellants resumed their operations, in disregard of the interdict which had been granted, and formed through the land a road, in substitution for a high road which they had stopped up by the course of their railway.The Respondent thereupon presented a petition and complaint against the Appellants and Stephenson, the contractor by whom their operations had been carried on, by which he prayed the Court to find that the Appellants had acted illegally, and been guilty of a breach and violation of the interdict

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The Appellants in their answer to this petition, stated the course they had followed, and concluded their answer in these terms.
“The Respondents desire, in conclusion, to state, that in what they have done, they were very far indeed from intending anything like disrespect to the Court. They know well that all subjects of this realm are bound to obey the orders of your Lordships, no matter at what expense or risk, and no matter how vexatious and unjust the conduct of the party holding an interdict may be. But they were humbly of opinion, and now respectfully, but confidently, submit to your Lordships, that the recent operations of the Railway Company having been made under a good statutory warrant and title, it is impossible to construe these to be a breach of interdict granted under totally different circumstances, when the Respondents held no such warrant or title.”
On the 20th of July, 1847, the Court pronounced the following interlocutor upon the petition and complaint.
“The Lords having advised the petition and complaint of James Hamilton, Esq., with answers for the Caledonian Railway Company, and John Stephenson, and heard Counsel for the parties, find that a breach of interdict has been committed by the Caledonian Railway Company as to the ground said to have been acquired under the proceedings before the Sheriff, by their operations since the 18th day of May last, and therefore fine and amerciate the said Caledonian Railway Company, and John James Hope Johnstone, Esq. of Annandale, M.P., Robert Johnstone Douglas, Esq. of Lockerbie; John Anderson, Esq. merchant, Glasgow; Alexander Hastie, Esq. Lord Provost of Glasgow; John Houldsworth, Esq. of Cranstoun Hill, merchant, Glasgow; William Lockhart, Esq. of Milton

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Counsel: Mr. Rolt and Mr. Anderson, for the Appellants. Mr. Bethell and Mr. A. McNeill, for the Respondent.

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Lord Brougham .—My Lords, this is a case of importance in some respects; but in my opinion it is without any difficulty whatever. I think to some extent the Court below has miscarried; but with respect to the matter first insisted upon by the Appellants, I am disposed to agree with their Lordships, and for the following reasons.An interdict was applied for and obtained; and that interdict, the Appellants contend, was to prohibit them, the Company, from doing certain acts upon a piece of ground, the property of the original Respondent, Mr. Hamilton, now deceased. Therefore, as the interlocutor of the Lord Ordinary “grants the interdict as craved,” we are carried back to look at what is craved, the contention of the Appellants being (and the case, as regards the Respondent, turns upon this point), that the interdict was to prohibit the doing of certain things upon ground now the property of the Appellants themselves.Mr. Hamilton, in his petition, upon which the interlocutor was pronounced, prays “to suspend the proceedings complained of, and to interdict, prohibit, and discharge the said Respondents from further entering upon the Complainer's plot of ground in the town of Crawford, as lately possessed by David Murray as tenant, referred to in the annexed statement of facts.” And, referring to the second part of the annexed statement of facts, we find that he first sets forth that he is the proprietor of “two freedoms of the commonty lands of Crawford,” lying in the parish of Crawford, in the county of Lanark. Then comes a more particular specification of his property, in section second of the statement, there being several plots—one in the possession of Marion Weir, as tenant; and another in the possession of William and Alexander Cranstoun, innkeepers in Crawford, as tenants; “and further, a plot of ground,” the plot in question, “extending to half an acre of ground, or thereby, with the houses built thereon, till lately possessed by David Murray, innkeeper in Crawford, as

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Then it was the duty of all parties thus prohibited, to abstain from carrying on their works upon that plot of ground; but they did carry on the works, though not for some time, the interdict being dated the 6th of March, and nothing being done till the subsequent month of May; but they did carry on those works, and they did thereby, in my opinion, and in the unanimous opinion of the Court below, carry on those works upon the forbidden ground, in breach of that interdict, and while it remained unrecalled.The question therefore is—1st, what circumstances there were to justify them in carrying on those works, in breach of the interdict? and, 2ndly, if there was no ground of justification,

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Now, my Lords, the first of these questions is answered by what I have stated in prefacing my opinion, namely, the purport of the interdict. If the interdict merely means that you shall not do certain things on the property of Mr. Hamilton, and if that property is divested, and passes out of him, after the date of the interdict, and before the alleged breach, then, in whomsoever it vests, at any rate the interdict is not broken, because it only forbade the doing something upon the property of Mr. Hamilton; and nothing has been done upon the property of Mr. Hamilton; but something has been done upon the ground after it became that of the Appellants, the other party. But if, on the other hand, the interdict, as I think I have shown, and as the Court below appear to me correctly to have thought, is not to forbid something being done on the property of Mr. Hamilton, but something being done on that which happened at that time to be the property of Mr. Hamilton in possession of his tenant David Murray, namely, a plot of ground in the town and parish of Crawford; it follows, as a necessary consequence, that the interdict has been broken, although the property may in the interim between the alleged breach and the date of the interdict, have changed hands, and become divested from Mr. Hamilton and vested in the other party.Therefore, my Lords, it is my opinion that the judgment of the Court below must stand, as regards the having visited in some way or other upon the party the consequences of their disobedience of the Court's order, in having presumed, notwithstanding the interdict, to act upon a purchase which they

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My Lords,the only question that remains is, whether that which has been done by the Court to punish the breach of the interdict is that which the Court ought to have done, or not?Now I am very clearly of opinion that the Court has miscarried in the course which it has here taken. I think it appears that there is a practice, and that by the law in Scotland there is a right, in the Court, to inflict a penalty by way of punishment, as for a contempt, by a breach of the orders of the Court, and that this is not merely with the view of compelling justice to be done according to the orders of the Court to a party in the prosecution of his civil right; but it goes a step further, showing that in Scotland the practice, and consequently the law of the Court, is, that the Court may validly inflict a certain penalty with the view of punishment, and to make an example which may deter others, for the future, from disobeying the order of the Court: and although no case has ever been brought to this House for decision as to the right of the Court below so to proceed, yet it must not by any means be supposed that the foundations of the right are shaken, merely because it has never been recognized by the higher authority of this Appellate Court. But the question is, whether in the manner of exercising that right which they possess, in the distribution of that quasi penal justice which they have a right and a duty to administer, they have miscarried or no? Then comes the material question as to the circumstances under which that alleged breach, and as I consider proved—indeed admitted—breach of the interdict, for the Appellants admit that they did the thing prohibited, although they say in justification first, and afterwards in extenuation of the breach, that they did it after the property had passed from Mr. Hamilton to Mr. McInnes.

Now, my Lords, as to the circumstances under which that

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I am, therefore, clearly of opinion that there has been a miscarriage in the Court below, and that in another respect there has been a miscarriage. For, as regards some parties, there ought to have been no fine at all—not even a shilling fine. I have read, with some degree of surprise, certain of the grounds stated by the learned Judges in the Court below. The Lord Justice Clerk says, “As there is no difference of opinion among us, it will not be necessary for us to take more time to consider how this case ought to be disposed of.” “The interlocutor of the Lord Ordinary seems not to have been applicable to the state of matters which is averred with regard to it. But I lay aside that, and I take the case that nothing had been done by the Railway Company till after the proceedings before the Sheriff. Still, however,

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Then upon whom were they to inflict the fine? upon the Caledonian Railway Company. Now I entirely agree that whatever is inflicted, must be inflicted upon the Caledonian Railway Company. But James Hope Johnstone, of Annandale, and a vast number of gentlemen, the Directors, ending with one of Her Majesty's present Ministers, are condemned in the fine, as well as David Rankine, the Treasurer. I shall therefore move your Lordships, that this judgment be altered; that is, affirmed, quoad the main point; and that will carry costs, not of the appeal, but in the Court below; and altered as regards the fine of 300 l ., reducing it to a fine of 40 s .,—and relieving from even the fine of 40 s ., those different persons whose names are given here. If so, then it will stand quite clear that this is no ground for denying that in another case the Court may justly inflict a fine of 300 l ., or even heavier punishment, if they think a wilful contempt has been committed. Our decision only will show that if there has been no wilful contempt,—if there is so remarkable a circumstance as exists in this case to extenuate the offence and make it merely technical, a nominal fine is enough; the offence being that a technically wrong course was pursued,—the course of acting before application was made by

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Lord Brougham .—In this case, as there has been a material variation made in the interlocutor, though the costs below will follow the judgment below,—that is, will go to the representatives of the Respondent, the deceased Mr. Hamilton, yet the costs of this appeal will not be given.Mr. McNeill .—I do not quite understand your Lordship; if I am under misapprehension I shall be set right. In this order your Lordship proposes to make the Caledonian Railway Company pay merely the costs below. I am going to submit this to your Lordship, with the permission of my learned friends. Your Lordship sees that I have been entirely successful on every point which I have had occasion to contend here. I am brought here as the Respondent upon a petition. I have not said a word to your Lordships as to the amount of the fine, as to which I have no interest.Lord Brougham .—That is very true; still you cannot have your costs here; that is discretionary at all times.It is Ordered and Adjudged, That so much of the said interlocutor of the 20th of July, 1847, complained of in the said appeal, as fines and amerciates the Appellants, John James Hope Johnstone, Robert Johnstone Douglas, John Anderson, Alexander Hastie, John Houldsworth, William Lockhart, William Macdonald, John Masterman, junior, Charles Murray Barstow, David Dickson, James Seton Wightman, Henry Menteith, younger, J. Hodgson Hinde. Humphrey Ewing Crum, the Right Honourable Fox Maule, and David Rankine, in a fine of 300 l . to the Queen, and authorizes and empowers the proper Officer in Exchequer to levy and recover the said fine from the said Appellants, be, and the same is hereby reversed: And it is further

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Solicitors: Grahame, Weems, and Grahame.