Wauchope, of Niddrie Marischall v. North British Railway Company [1862] UKHL 4_Macqueen_348
REPORTS OF CASES ARGUED AND DETERMINED in The house of Lords.First Appeal.No. 16.Wauchope, of Niddrie Marischall, Appellant v. North British Railway Company, Respondents1862 . March 6th .Subject_ Refusal to conjoin Actions — Appeal. —
An Interlocutor was pronounced by the Court below, refusing to conjoin certain actions. Held, by the House, that the refusal involved a question of mere practice arising in the course of procedure, upon which the Court below had exercised a judicial discretion, not properly reviewable by the House of Lords on appeal.The House, ex proprio motu , declined to go into the case, even although the Court below had granted leave to appeal.Per the Lord Chancellor (b) : This is one of those matters in which faith ought to be given to the judicial discretion of the Court below; p. 350.The Solicitor-General (a) and Mr. Rolt appeared for Mr. Wauchope.Mr. Anderson and Sir Hugh Cairns for the Company.The sole question which decided the fate of this Appeal cannot be more distinctly and succinctly stated than by the following judicial exposition:—Lord Chancellor's opinion.The Lord Chancellor :
An action was brought by Mr. Wauchope in the month of October 1848 against the North British Railway Company for an account of certain tonnage duties incurred in respect of traffic over the railway which was partly constructed on the estate of the Appellant; and the conclusions of the summons were that an account might be taken not only of monies then due from the Company, but also of monies that might become due in respect of traffic carried on “inFootnote
( a ) Sir Roundell Palmer.( b ) Lord Westbury.Page: 349 ↓
To the second action thus instituted the Defenders, the Railway Company, put in several pleas, and before any judicial determination was come to upon their defences an application was made by the Appellant, Mr. Wauchope, to conjoin the two actions. The effect of that, I apprehend, would be to make the matter, which was res judicata in the first action, become also res judicata in the second action. That application for the conjunction of the two actions was opposed by the Railway Company; and the Lord Ordinary was of opinion that the conjunction ought not to be made, inasmuch as he was told by the Defenders that it would prejudice their defence, andFootnote
( a ) The summons in this second action was dated and signeted the 2nd February 1859.( b ) The date of the first summons.Page: 350 ↓
It is for your Lordships, notwithstanding that leave, still to exercise your judgment whether it was or was not a sufficient answer to the application, or whether it be a matter proper to be brought by way of Appeal before this House, seeing that it was one entirely of judicial discretion, it being a matter arising in the course of procedure.I must humbly submit to your Lordships that the Lord Ordinary was decidedly right; but whether he was right or whether he was wrong, it is one of those matters in which faith ought to be given entirely to the judicial discretion of the Court, and no encouragement ought to be given to bringing these matters, which are easily determined by the exercise of that judicial discretion, as matters of Appeal before yourPage: 351 ↓
Lord Cranworth's opinion.Lord Cranworth :
My Lords,the only observation I shall make in addition to what my noble and learned friend has said is this, that I would suggest to my noble and learned friend that perhaps it would be better to suspend the final drawing up of this order till to-morrow, when we shall have heard the argument upon the other Appeal (a) , and we shall then be better able to dispose of the question of costs.Lord Chelmsford's opinion.Lord Chelmsford :
My Lords,I entirely concur.The Lord Chancellor : Let the drawing up of the order be suspended till the hearing of the other Appeal. All that the House has decided at present is that the Appeal from the Interlocutor refusing to conjoin the two actions must be dismissed; and the order that will be made upon it will be an integral part of one order to be made on both Appeals (a) .
Counsel: Loch & Maclaurin— Dobie.Footnote
( a ) See the next case.