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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson and Another v. Stoddart and Others [1923] ScotLR 483 (25 May 1923) URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0483.html Cite as: [1923] ScotLR 483, [1923] SLR 483 |
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Page: 483↓
In a petition and complaint against three respondents for breach of interdict, which had been obtained in absence, objections were taken on the grounds (1) that one of the respondents was incorrectly named “Stodart” instead of “Stoddart”; (2) that the address of another respondent was wrongly stated; and (3) that each of the three respondents was incorrectly described as respectively “merchant,” “crofter,” and “small holder.” The respondents did not deny that they knew they were the persons referred to in the interdict proceedings, or that they had deliberately done what the Court had prohibited. Held that the objections fell to be repelled—the first, in respect that there was no averment that confusion or injustice had been caused; the second, in respect that there was no averment that the place where the respondent in question lived had not been sufficiently identified; and the third, in respect that there was no averment that any doubt had been caused as to who the parties called as respondents were.
On 11th January 1923 Neil Stodart junior, merchant, residing at 16 Torrin, Broadford, Isle of Skye, Neil M'Innes, crofter, 14 Torrin, Broadford, and Donald Grant, smallholder, Uilead, Kilbride, Broadford, were interdicted in absence at the instance of John Anderson and Roderick Anderson, joint tenants of the farm of Kilbride and Kilchrist, Broadford, Isle of Skye, from trespassing upon the complainers' farm, and from molesting or interfering with the complainers in the peaceable enjoyment and possession thereof.
On 23rd April 1923 the complainers brought a petition and complaint against the said Neil Stodart, Neil M'Innes, and Donald Grant alleging breach of interdict. The petition narrated the presentation of the note of suspension and interdict and the statement of facts contained therein, the interlocutor granting the interdict, and the intimation thereof to the respondents by letter under registered cover, to which, it was alleged, no answer had been made, and specified a number of acts committed by the respondents, and alleged to be in breach of the interdict.
The respondents lodged answers, in which they stated, inter alia—“The respondent
Page: 484↓
first called in the petition and complaint is incorrectly named and designed. His name is Neil Stoddart, and he is not a merchant in Torrin or elsewhere. He lives along with his family of four in his father's house at 16 Torrin, where his father has a small shop and half a croft. His father is also named Neil Stoddart. Before the War this respondent emigrated to Canada, but in 1914 he returned at his own expense to this country along with his brother, and enlisted in the Black Watch. He lost a leg at the battle of the Somme. Since his discharge from the army he has assisted his father in the latter's shop. The respondent Neil M'Innes is incorrectly designed. He is not a crofter, and holds no land whatsoever. He at present lives with his brother Alexander M'Innes, who has a quarter of a croft at 14 Torrin. To the same address belonged a Neil M'Innes, who is at present in Australia. This respondent served in the Seaforth Highlanders for nineteen years, and during the War was severely wonnded in France. The respondent Donald Grant is incorrectly designed, and his address is wrongly stated. He is not a smallholder and has no land whatsoever, nor does he reside at Uilead, Kilbride, Broadford. He lives with his widowed mother, who is a cottar at Uilead, Corry Farm, Skye. Kilbride and Corry are different farms. He joined the army at the age of eighteen, and served with the Argyll and Sutherland Highlanders.” They admitted that the note of suspension and interdict had been presented, but denied that it was directed against them, in respect that their designations were not the same as those of the respondents called in the note. They also admitted that interdict had been obtained as stated in the petition and complaint, and that intimation thereof had been sent to them by letters under registered cover, and that no answer had been made thereto. They did not deny having committed the acts alleged by the complainers to have been committed by them in breach of the interdict, but denied that the said acts were in breach of the interdict, in respect that it was not directed against them. When the case came before the Court counsel for the complainers moved that the respondents should be ordained to appear at the bar, and contended that the answers were irrelevant, the objections being merely technical, and there being no real controversy as to the identity of the respondents with the persons who had been interdicted and who had committed the acts complained of. Where the error was technical it must be shown to have been material. Cruikshank v. Gow & Sons, 1888, 15 R. 326, 25 S.L.R. 292.
Argued for the respondents—There was no breach of interdict, because the respondents had not been so described in the interdict as to make it apply to them. This was not a case of incomplete designation, but of designations altogether inapplicable. Joel v. Gill, 1859, 22 D. 6, per Lord Justice-Clerk, at pp. 12 and 13; Brown v. Rodger, 1884, 12 R. 340, 22 S.L.R. 225.
At advising—
As regards the designations of the respondents, their addresses are admittedly correctly stated in the proceedings, subject to the criticism that one of the respondents, Donald Grant, is alleged not to reside (as stated) at “Uilead, Kilbride, Broadford,” but it is averred that “he lives with his widowed mother, who is a cottar at Uilead, Corry Farm, Skye. Kilbride and Corry are different farms.” The respondent does not aver that the addition of the words “Kilbride, Broadford,” is not sufficient to identify “Uilead,” which is the house or place where he lives. Accordingly the objection is of no practical importance, and must be repelled.
Having reached this point, we find that there are three respondents whose names and addresses are correctly set forth in the proceedings. It remains to consider whether certain alleged mistakes which the respondents point out in their designations as set forth in the proceedings are, in the circumstances, material. One of them, who is designed as “Neil Stodart junior, merchant, residing at 16 Torrin, Broadford, Isle of Skye,” alleges that he is not a merchant, but only an assistant to his father Neil Stoddart, who is a merchant at 16 Torrin; but he does not state that the description did or could lead to any doubt as to his being the person called as a respondent. In like manner the respondent who was designed as “Neil M'Innes, crofter, 14 Torrin, Broadford,” explains that he is not a crofter, but “lives with his brother Alexander M'Innes, who has a quarter of a croft at 14 Torrin.” It is not stated that his identity as a respondent in these proceedings depended in any way upon his being the tenant of the croft where he resided, and the misdescription is not alleged to have been of any practical importance
Page: 485↓
The Court ordained the respondents to appear at the bar.
Counsel for the Petitioners— Macmillan, K.C.— Scott. Agents— Aitken, Methuen, & Aikman, W.S.
Counsel for the Respondents—N. M. L. Walker. Agent— Donald Shaw, S.S.C.
