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William Murray, with concourse of the Procurator-fiscal of the County of Haddington, v Robert Turnbull and Adam Russell. [1797] Mor 7628 (19 January 1797)
URL: http://www.bailii.org/scot/cases/ScotCS/1797/Mor1807628-341.html Cite as:
[1797] Mor 7628
William Murray, with concourse of the Procurator-fiscal of the County of Haddington, v. Robert Turnbull and Adam Russell
Date: 19 January 1797 Case No. No 341.
A complaint for shooting pigeons, founded on the acts 1567, c. 16. and 1597, c. 270. cannot be competently brought before the Justices of Peace.
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William Murray, portioner in the village of Tranent, and proprietor of a pigeon-house in it, which had been built by the family of Winton, while the barony of Tranent belonged them, presented a complaint to the Justices of Peace for the county of Haddington, with concourse of the procurator-fiscal, against Robert Turnbull and Adam Russell, for shooting pigeons. The complaint stated, “That, by sundry laws and acts of Parliament, and particularly acts 1567, c. 16. and 1597, c. 270. all persons are discharged from shooting at or slaying of doves, (pigeons) with hagbuts, hand-guns, cross-bows, and pistols, and taking of them with nets and girns, under certain penalties, payable to the judge and apprehender; and more particularly, by the British statute, 2d Geo. III. c. 29. persons are discharged from shooting with intent to kill, or by any means killing, or taking with intent to destroy, any house-dove or pigeon, under the penalty of twenty shillings, upon conviction on oath of party, or one witness, payable to the informer or prosecutor.”
The defenders admitted they had killed a few pigeons; but they stated, that there were no less than thirteen pigeon-houses in the village, twelve of which belonged to persons not qualified to build a pigeon-house; and that what they had done was absolutely necessary to protect a field belonging to the father of Turnbull, in the immediate vicinity of the village, while it was sowing with barley.
The Justices ordered Turnbull to pay fifteen shillings, and Russel five shillings, in name of fine and expenses.
An appeal to the Quarter-sessions was dismissed, with expenses.
In a suspension, the Lord Ordinary found the letters orderly proceeded, and expenses due.
In a reclaiming petition and answers, besides arguing the case on the merits, parties differed as to the competency of the complaint. The suspenders
Pleaded; The two Scotch acts founded on introduced a general prohibition against killing game with fire-arms, and are now in desuetude. Besides, if they were in force, the Justices, under them, would be limited to inflicting the special penalties therein mentioned, which are escheat of moveables, imprisonment, placing on the stocks, and cutting off the right hand. From the nature of these penalties, it is farther evident, that such complaints can only be insisted in ad vindictam publicam, and not at the instance of an individual, particularly when no proof of the damage sustained is offered.
The statute 2d Geo. III. c. 29. was passed merely for the purpose of amending certain English statutes, and does not apply to Scotland.
Answered; The Scotch acts founded on are still in force. It is no objection to the judgment of the Justices, that a severer punishment might have been inflicted by them. The action introduced by the statutes is popular; and accordingly part of the penalties is declared payable to the 'apprehender.'
The Court had no occasion to determine the merits of the complaint. But it was observed, that Lord Bankton's opinion, as to the legality of shooting pigeons, b. 2. tit. 3. § 167. is ill founded, and that his Lordship afterwards admitted it to be so.
As to the competency of the complaint, it was
Observed; The right to have a pigeon-house is inseparable from property in land. The complainer, therefore, having no right to a pigeon house, has no title to insist in the action. Besides, the Justices of Peace have no jurisdiction under the Scots statutes founded on, which were passed long before their appointment; and the 2d Geo. III. c. 29. does not apply to Scotland.
The Lords dismissed the action as not competent in its present shape.
Lord Ordinary, Craig.For the Charger, Cha. Brown.Alt. Lord Advocate Dundas.Clerk, Menzies.
Fac. Col. No 9. p. 19.
