Scottish Court of Session Decisions

This was an appeal from a deliverance of the Sheriff of Fifeshire on a petition at the instance of John M'Arthur, butcher, Cowdenbeath, against William Millar, miner, Cowdenbeath, for delivery of two sheep belonging to the petitioner, which had been seized upon by the respondent; or alternatively for a sum in name of damages.

The facts were briefly these—that on the 6th June 1873 the respondent found several sheep in his garden, two of which he poinded in virtue of the Act 1686, c. 11. They belonged to the petitioner, who was sub-tenant of a park adjoining the respondent's garden, and they had made their way through a gap in the dyke, as there was no herd with them.

The Sheriff-Substitute ( Lamond) pronounced the following interlocutor:—

“ Dunfermline, 11 th July 1873.—The Sheriff-Substitute having considered the closed record, proof, and productions, and heard parties' procurators, finds that the respondent is proprietor of a feu at Foulford, Cowdenbeath; that his feu adjoins on the west a field in grass tenanted by Dr Mungall; that along the west boundary of his feu the respondent erected on his own ground a stone wall; that a gap in this wall was made some time ago by a spate, and that the respondent holds the Lochgelly Iron Company, his superiors, liable for the damage: Finds that some weeks prior to 6th June 1873, Dr Mungall (who also holds under the Lochgelly Company) informed the respondent that he had sublet the field to the petitioner for sheep pasture, and requested the respondent to get the gap in his wall repaired: Finds that about a week prior to said 6th June the petitioner put sheep into the field; that the gap was not repaired; that on Sunday, 1st June, some of the sheep got into the respondent's garden through said gap, but were driven out by the petitioner; that on Monday, 2d June, the petitioner went to respondent and apologised, and offered to help him to repair the wall; that the respondent refused, alleging as his reason that until he got settled with the Loch—gelly Company he was not disposed to mend the dyke; Finds that on 6th June some of the petitioner's sheep again strayed into the respondent's garden; that the respondent seized two of them, and has ever since detained them; Finds that the respondent knew to whom the sheep belonged, but took no step to inform the petitioner, who lives across the road almost opposite to him: Finds that on Saturday, 7th June, the petitioner's agent wrote to the respondent the letter No. 7 of process, which letter would in course of post be delivered on Monday morning; that notwithstanding of said letter the respondent, well knowing to whom the sheep belonged, went to Dunfermline on Monday afternoon and got handbills printed, of which No. 6 of process is a copy, and had the same posted up: Finds in law that the respondent's detention of said sheep is illegal, and that in the circumstances he is not entitled to found on the Act

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1686, c. 11: Therefore decerns and ordains the respondent instantly to deliver up said sheep to the petitioner, and reserves all further questions, including that of expenses.

Note.—The Sheriff-Substitute has detailed the facts in this case at length, and it appears to him to be clear that, if the respondent's garden sustained injury through these sheep getting into it, he not only had himself to blame by not mending his dyke, but actually left the gap in order that, by the sheep getting in, he might have a stronger case against the parties whom he held responsible for the damage to his dyke. If the case stopped here, the Sheriff-Substitute would have said the respondent is in the wrong, and has acted illegally. But he pleads the Act 1686, cap. 11, as authorising the poinding of the sheep. It seems to the Sheriff—Substitute to be monstrous to hold that a man who purposely seeks the damage he has sustained, and who, it may be said, invites the sheep to stray into his garden that he may use the trespass as a handle against a third party, is to take the benefit of an Act of Parliament passed for another purpose altogether, and an Act to a certain extent penal in its nature. It was the respondent's duty to have protected his own garden; and if he had done this, and the petitioner's sheep managed to trespass into it, it would have been time enough for him then to have taken the measures pointed out by the Act. But supposing the Act to apply to a garden (which may be doubted), did the respondent act up to it? He did not. He knew to whom the park belonged, and to whom the sheep belonged, and yet he made no claim for the money payment for the number of sheep straying, and he has taken no steps to recover the damage done to his crop in terms of the Act. If he is to claim the benefit of the Act as authorising what he did to his neighbour, he must act up to it himself, and this he has not done. What he has done is one of the most unneighbourly things the Sheriff-Substitute has as yet met with, and for which he can find no authority in law.”

On appeal by the respondent, the Sheriff pronounced the following interlocutor:—

“ Edinburgh, 14 th August 1873.—The Sheriff having heard parties' procurators on the appeal for the respondent, and considered the record, proof, and whole cause, dismisses the said appeal, adheres to the interlocutor of the Sheriff-Substitute appealed against, and decerns; in the meantime, reserves all questions of expenses, and remits the cause to the Sheriff-Substitute.

Note.—The findings in fact contained in the interlocutor of the Sheriff-Substitute are all well founded. Indeed, the discussion which took place before the Sheriff proceeded upon the assumption that they were so.

The question which was argued was whether the respondent, in seizing and detaining the petitioner's sheep, was acting within the provisions of the Act 1686, cap. 11? This Act has not, so far as the Sheriff is aware, been recently under the consideration of the Supreme Court; but there are several cases of a more remote date where the Act received full consideration— Govan v. Lang, 18th February 1794, M. 10,499; Lock v. Tweedie, 3d July 1799, M. 10,501; Turnbull v. Couts, 23d February 1809, F.C.; Shaw & Mackenzie v. Ewart, 2d March 1809, F.C.; Pringle v. Rae, 31st January 1829, 7 Shaw, 352. Great diversity of opinion was expressed in some of these cases, but they resulted in the Act receiving a liberal construction. The Sheriff-Substitute doubts whether the Act applies to a garden or piece of ground such as that occupied by the respondent.

The Sheriff is inclined to think, looking to the terms of the Act and the decisions above quoted, that it does not apply to the subjects possessed by the respondent.

The Sheriff, however, is of opinion that the specialties which occur in this case preclude the respondent from founding on the Act as entitling him to retain possession of the petitioner's sheep.

At the time the field occupied by the petitioner was sublet to him, there was a gap in the dyke which separated it from the respondent's feu, of about two or three yards. The respondent was informed that the field was sublet to the petitioner, and that cattle or sheep were to be put on it to graze. His attention was then called to the fact that part of his dyke was down, but he said he was not disposed to repair it.

On Sunday the 1st of June, soon after the sheep were put into the field, they got into the respondent's garden through the gap in the dyke, but they were driven out by the petitioner. On the following Monday the petitioner spoke to the respondent about repairing the dyke; the respondent not only refused to do this, but he declined the petitioner's offer to assist him in repairing it.

The sheep in question were seized by the respondent on Friday the 6th of June, when they were in his garden: Notwithstanding what the respondent says in his deposition, the Sheriff thinks it is proved that he knew to whom the sheep belonged. Knowing this, it was his duty to give immediate intimation of the seizure of the sheep to the owner. This he did not do, but on Monday the 9th of June he got handbills printed, stating that two sheep had been found in his garden, and that if they were not claimed they would be sold to pay damages and expenses.

In these circumstances, the Sheriff concurs with the Sheriff-Substitute in thinking that the respondent is not entitled to found upon the Act 1686 as entitling him to retain the possession of the sheep.”

The respondent appealed.

It was argued for the appellant that he was entitled to keep the sheep, under the Act 1686, c. 11, until the penalty inflicted by the Act had been paid. The appellant's dyke was built entirely on his own ground, and the respondent was bound to have kept a herd to prevent his sheep from straying.

For the respondent it was argued—(1) That the statute was not intended to apply to gardens; and (2) that the appellant was not entitled to found upon it, as he had not given intimation of the seizure at once to the owner.

Authorities cited— Govan v. Lang, Feb. 18.1794, M. 10,499; Lock v. Tweedie, July 3,1799, M. 10,501; Turnbull v. Couts, Feb. 23,1809, F.C.; Shaw A Mackenzie v. Ewart, March 2. 1809, F.C.; Pringle v. Rae, Jan. 31, 1829, 7 S. 352.

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