Miners Legal Action Fails

An attempt by some Miners at Strontian to bring a legal action fails
by John Dye

Transcribed handwritten material from the office of the Procurator Fiscal of Tobermory, currently held in the Argyll Archive at Lochgilphead.

In 1854, some of the miners tried to bring a case against the mining company, but were ruled out of order by the sheriff substitute.

What is interesting is the recurrence of some of the names which also appeared at the Strontian Mines Inquest in 1851. Knowing that many names were held in common at this time does not guarantee that the people concerned are the same as those involved in 1851. However, there is enough common ground to make it an interesting speculation. Those names appearing in both documents are highlighted in colour, including that of poor Duncan Cameron who was killed in the 1851 rock-fall.

Duncan Cameron, John Cameron, James Lowrie, Duncan MacMillan, Alexander McPhee, Miners, all residing at Scotstown and Hugh Cameron (More), Miner residing at Ariundle, all in the parish of Ardnamurchan

Pursuers Against
Mark Milligan or Milliken, residing at Strontian, Mines defender

Tobermory 30th April 1855
The Sheriff Substitute having considered the Preliminary Defence and a motion for the Pursuers to sist the Strontian Mining Company as parties in the Action and heard parties Procurator for the reasons Conatined in the annexed Note (not attached - JD) sustains the preliminary Defence and Dismisses the Action and Decerns - Finds the Pursuers liable in Expenses - allows an Account thereof to be lodged for taxation.
Signed Wm Robertson (Sheriff Substitute, also Factor for Sir James Milles Riddell Bart. - JD)

The Strontian mining company has been carrying mining operations for many years at Strontian, and these have been superintended and the business of the Company Conducted by a Manager. Besides the Manager there usually was a foreman that superintended the working of the Mines. This foreman was in the habit of telling jobs and had the principal superintendence of the Mines. The person that had this post before the Defender entered into a Contract with the Pursuers which has given rise to the present Action.

About that time the resident Manager of the Company was Mr Barrat who it is understood left Strontian before the Contract was entered into, but is still connected with the Company. This Action is directed against the Defender as coming in place of the person that entered into the Contract, and as such representing the Company.
The Sheriff Substitute is of opinion that the Defender does not properly represent the Company and that a Decree against him in the character libelled would be of no use to the Pursuers even if they were to get it. And from the motion made for them to have the Company sisted, that appears to be their own opinion now. The constitution of the Company has not been explained but it is not all likely that it is such that it can sue, or be sued, in the name of an inferior servant without Calling the Company as a party, whether by its descriptive name or otherwise it is for the Pursuers to determine.

The Sheriff Substitute has very strong doubts of the Competency of sisting the Company. The present Defender is not in any way responsible for the actings of his predecessor, and nothing has appeared like a right to sue one foreman of the Company under Contracts of another. Then the Action is improperly directed - for he cannot be sued as either representing the Company or his predecessor. The Company is the principal party, and it may be bound by the Contracts of its servants, but when these Contracts come to be enforced against the Company it must be sued (as) the principal party. If the principal is let out and a person in no way liable is proceeded against there is an imperfection in the essence of the Actin that cannot be rectified in the manner proposed.

Tobermory 2nd May 1855
Appeal against this Interlocutor
Signed Henry Nisbet Pros. for Purs.
Edinburgh 17th May 1855
The Sheriff having considered the appeal for the Pursuers and whole process adheres to the Interlocutor of thirtieth April Eighteen hundred and fifty five, appealed against and Dismiss the appeal
Thomas Cleghorn

The Sheriff adopts the reasoning in the Note of the Sheriff Substitute which is in conformity with the Decisions in the case of McMillan vs. MacCulloch, Jany. 28 1842 4 W.B.M. 492 and the two cases there referred to King vs. Shirra 5 sch 231 and Russell 23 May 1837 15 Sh. These cases seem to establish not only that the action is wrongly laid against the Manager but that the defect cannot be cured by calling the Company now. In McMillan vs. MacCulloch the Lord Ordinary observed "The summons was directed against the Respondent solely as an agent which was an incompetent ground on the face of the Summons for claiming the dues libelled on from the Defender". In the present case the Defender is called as Manager on behalf of and representing the running Company, and this being an incompetent ground of Action on the face of the Summons it falls to be dismissed.

The mere fact of the Contract libelled on having been entered into with a previous Manager does not seem so material, because the Defender admits having adopted it and it was renewed for the Month of March after his appointment. But the action is not laid against him on the ground of employment by him or adoption by him of the contract and as being liable jointly or alternatively with the Company, but solely on the incompetent ground that he represents the company.

The only mode of calling the Company (had it been competent) would have been by a supplementary Summons while the Defender would have been entitled to the expenses hitherto incurred by him (see case of Barbour v. Smith 2 Sh 795) so that the Pursuers would have gained little or nothing had their motion been granted. 'Sisting' a party implies his voluntary appearance in the Action and no mere intimation to a citation of the Company would have enabled the Pursuers to get decree against them without petitory conclusions for which a Summons is secured.
Initialled T.C.

The Sheriff Substitute having considered the Denenders Account of Expanses, Modifies the same at Four pounds Ffiteen Shillings and decerns(?)
Signed Wm Robertson.