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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Christie Miller v. Anderson and Bain [1879] ScotLR 16_721 (9 July 1879) URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0721.html Cite as: [1879] SLR 16_721, [1879] ScotLR 16_721 |
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Page: 721↓
Proof
Sentence of one month's imprisonment imposed by the Court in a case of breach of interdict against removing sand from a foreshore.
Held that the respondent in a petition and complaint for breach of interdict may competently be examined as a witness under the provisions of the Act 16 Vict. c. 20, sec. 3.
Mr Christie Miller was proprietor of the lands and barony of Craigentinny. On October 19, 1877, he obtained an interdict against William Anderson, gravel merchant, Leith, prohibiting him from removing gravel, sand, &c., from the lands of Craigentinny and from the sea-shore ex adverso of these lands.
On April 27, 1877, Mr Christie Miller obtained an interim interdict to the same effect against William Bain, carter, Edinburgh, which became perpetual on 22d May 1877.
Notwithstanding these interdicts Anderson and Bain continued to take sand from the Craigentinny foreshore, and on March 19, 1879, Mr Christie Miller presented a petition and complaint for breach of interdict, with consent of the Lord Advocate, against Anderson, and on May 17, 1879, one against Bain.
Proof was led in both petitions on an order of the Court before Lord Mure on the 23d of June. At the proof counsel for the respondent Bain proposed to examine him as a witness. Counsel for the petitioner stated that while not consenting he did not object to this being done, subject to a doubt as to the competency of such a proceeding. At the hearing of the case before the Division it was argued for the respondent that the admission of his evidence in a quasi-criminal action of this kind was not struck at by sec. 3 of the Act 16 Vict, c. 20, as this was “neither an indictable offence” nor was it “punishable on summary conviction,” and that as matter of fact it bad been allowed in former cases.
Authorities— Bruce v. Linton, Dec. 13, 1861, 24 D. 184; Henderson, May 23, 1874, 1 R. 920; Mackay, Sept. 23, 1853, 1 Irv. Just. Rep. 288; Stevenson v. Scott, Sept. 8, 1854, 1 Irv. Just. Rep. 603; France v. Anderson, June 29, 1877, 4 R. (Just. Ca.) 42; Dickson on Evidence, secs. 828, 1396; Blair y. Mitchell & Malloch, July 9, 1864, 4 Irv. 545.
At advising—
The leading enactment is—“It shall be competent to adduce and examine as a witness in any action or proceeding in Scotland any party to such action or proceeding, or the husband or wife of any party, whether he or she shall be individually named in the record or proceeding or not.” These words are very comprehensive. The exception is—“But nothing herein contained shall render any person, or the husband or wife of any person, [who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, his wife or her husband, excepting in so far as the same may be at present competent by the law and practice of Scotland,” &c. Now, here there are two, and only two, particular kinds of proceedings specially meant, namely, criminal proceedings in which the person is charged with an “indictable offence,” and proceedings in which the offence is “punishable on summary conviction.” In every other class of proceeding the party is allowed to give evidence for himself. I think therefore that this evidence is not within the exception.
In one sense this is undoubtedly a criminal proceeding, but it is also one in which civil interests are often largely concerned, and therefore it is often called a quasi-criminal proceeding. If the nature of the interdict is so plain that the proof of a fact is conclusive evidence of the charge that it has been broken, such a civil interest does not emerge, but sometimes civil interests of great importance are concerned. I remember a case in which such a question having arisen the Court saw that the judgment on the complaint would decide the extent of a right in salmon-fishing. We therefore adjusted, and sent an issue to a jury, preparatory to the decision of the petition and complaint.
I think that there is good reason for holding that evidence in such a case as this was not in the contemplation of the Legislature when it excepted only two kinds of proceedings. These two classes are well known to our law, and do not correspond with the proceeding now before us.
The Court, after hearing counsel on the evidence, unanimously found the charges of breach of interdict to be proved, and sentenced both respondents to be imprisoned for one calendar month.
Counsel for Petitioner— Balfour— D. Dundas. Agents— Dundas & Wilson, C.S.
Counsel for Respondent (Bain)— Rhind. Agent — C. B. Hogg, L.A.
