Scottish Court of Session Decisions

James M'Nab, tenant of the lands of Dumyat in the county of Perth, brought a complaint before the Sheriff-Substitute of Perthshire in November 1883, in which Alexander Ferguson, weaver, Alloa, Stirlingshire, and four other persons, were charged with a contravention of the Day Trespass Act (2 and 3 William IV. cap. 68), by entering upon the complainer's farm, “tenanted under the Right Honourable Alexander Hugh Bruce, Lord Balfour of Burleigh, the proprietor thereof, in search or pursuit of game.”

On 14th November 1883 the Sheriff-Substitute pronounced an interlocutor convicting Ferguson in respect of the evidence adduced, and appointed him to pay the modified penalty of 10s. with 21s. 9d. of expenses, or in default thereof to be imprisoned for fourteen days.

Ferguson was incarcerated for a week in the prison of Dunblane, and thereafter presented to the Lords of Justiciary on the 19th November 1883 a bill of suspension and liberation in which he pleaded, inter alia, (1) that M'Nab had no title to prosecute as he was only tenant of the lands; (2) and that the whole proceedings were null as he had not been duly cited, and further (3) that he had been oppressively refused by the Sheriff an opportunity of proving the defence of alibi.

On 19th November 1883 Ferguson was liberated (by Lord Mure) on his finding caution for £5 that he would return to prison in the event of the bill being ultimately refused.

When the bill of suspension and liberation came before the High Court of Justiciary on 22nd February 1884, M'Nab again alleged and offered to prove an alibi, and the Court remitted to the Sheriff-Substitute of Perthshire to investigate into the allegations concerning the alleged alibi, and to report quam primum. After various proceedings the Lords Commissioners of Justiciary on 19th July 1884, in respect the defence of alibi proponed for Ferguson had been established, passed the bill, and suspended the conviction and sentence complained of simpliciter.

In December 1884 Ferguson raised the present action of damages against M'Nab concluding for payment of £500 as damages.

He averred that the defender could easily have discovered if he had taken any trouble that at the time when he was charged under the Day Trespass Act he was not within thirty miles of the place set forth in the complaint. He averred also that he was not properly cited, and that the whole proceedings were malicious and oppressive, and that the defender being only tenant of the lands had no title to bring the complaint. He further alleged that he had suffered considerable loss and damage in his reputation from the proceedings which had been taken against him.

The defender stated that the proceedings were instituted under the Summary Procedure Act of 1864, section 35 of which provides that all actions on “account of anything done in any case instituted under this Act shall be commenced within two months after the cause of action shall have arisen, … and not otherwise;” and that the present action, which had been brought on account of the proceedings instituted by the defender under the Summary Procedure Act, had not been brought within two months after the cause of action had arisen; further, he set forth that the 17th section of the Day Trespass Act (2 and 3 Will. IV. c. 68) provided that “all actions and prosecutions to be commenced against any person for anything done in pursuance of this Act must be commenced within six months after the fact committed, and not otherwise, and that notice in writing of such action, and of cause thereof, be given to the defender one month at least before the commencement of the action.” More than six months had elapsed before the action was commenced, and no written notice had been sent as required. The defender also averred, and it was not denied, that besides being tenant of the lands he was also tenant of the shootings, and he maintained that therefore he was entitled to bring the complaint — that he acted upon reasonable information and without malice.

The pursuer pleaded that the defender was liable in damages (1) because the proceedings were malicious and without probable cause; and (2) because the defender had no title to bring or insist in the proceedings complained of.

The defender pleaded—“(1) The present action not having been brought within two months after the cause of action arose, it is excluded by section 35 of the Summary Procedure Act 1864. (2) This action not having been commenced within six months after the fact committed, and no notice thereof in writing having been given, all as required by the Act 2 and 3 Will. IV. c. 68, it is incompetent, and the defender is entitled to absolvitor.”

On 17th January 1885 the Lord Ordinary sustained these pleas for the defender and dismissed the action.

“ Opinion.—The pursuer of this action claims damages against the defender on the ground that he was unjustly prosecuted under the Day Trespass Act (2 and 3 Will. IV. c. 68), and was convicted, and for a few days imprisoned under the warrant of the Sheriff-Substitute, who convicted him. The accusation against the pursuer was that he along with other persons committed a trespass by entering or being upon or within ‘the hill

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or part of the complainer's farm of Dumyat, commonly called or known as the Blairhill, and on a part thereof about 300 yards to the north-west of Blair Logie Castle, occupied by James Marshall, joiner, and which hill, or part of the complainer's farm of Dumyat is situated in the parish of Logie and county of Perth, and is tenanted by the complainer under the Right Honourable Alexander Hugh Bruce, Lord Balfour of Burleigh, the proprietor thereof, in search or pursuit of game, … and that without the leave of the complainer or the said proprietor.’ Evidence was led in support of this charge, and on the 14th of November 1883 the Sheriff-Substitute found it proved, and adjudged the pursuer to pay a penalty of 10s., with 21s, 9d. of expenses, and in default of payment adjudged him to be imprisoned for the space of fourteen days.

The pursuer presented a bill of suspension and liberation to the High Court of Justiciary, and on the 19th November 1883 Lord Mure granted warrant for his liberation on caution that he would return to prison in the event of the bill being ultimately refused. Suspension was asked upon various grounds, the first being that the defender, at whose instance the complaint had been made, had no title to prosecute, and he also averred and offered to prove an alibi. The Court of Justiciary allowed a proof of the alibi, and on 19th July 1884 they suspended the conviction and sentence on the ground that the alibi had been established.

It is in these circumstances that the pursuer now claims damages, and is met by the defence that the action has not been brought within the time appointed by law.

The complaint was instituted under the Summary Procedure Act 1864 (27 and 28 Vict. c. 53). The 35th section of this statute runs as follows:—‘Every action or prosecution against any sheriff, judge, or magistrate, or against any clerk of court, procurator-fiscal, or other person, on account of anything done in any case instituted under this Act, shall be commenced within two months after the cause of action shall have arisen, unless a shorter period is fixed by the Special Act, and not afterwards.’ Now, if this section applies to the present case the action must be dismissed, because it has not been brought within two months after the cause of action had arisen. That cause of action arose when the pursuer was incarcerated on the 14th of November 1883. But even taking it that it did not arise until the judgment of the Court of Justiciary was pronounced (19th July 1884), the same result must follow, for the summons was not signeted till 20th October 1884.

Then there is the further protection conferred by section 17 of the Day Trespass Act in the following terms: — ‘And for the protection of persons acting in the execution of this Act, be it enacted that all actions and prosecutions to be commenced against any person for anything done in pursuance of this Act shall be commenced within six calendar months after the fact committed, and not otherwise, and notice in writing of such action, and of cause thereof, shall be given to the defender one calendar month at least before the commencement of the action.’ The action was not raised within six months ‘after the fact committed.’ It is maintained by the pursuer that these clauses are inapplicable to the present case. First, as regards the Summary Procedure Act, it is contended that it was only meant to protect official persons such as those specifically named, and that the words ‘or other person’ must be interpreted as being officials, like the sheriff, judge, clerk of court, and fiscal. No doubt it is a rule of construction that when you find general words following a specific enumeration they are to be held as including only persons ejusdem generis with the enumeration. But this rule is modified according to the subject—matter of the enactment; and in a case like the present, where the object is to impose a limitation upon actions of damages instituted on account of some flaw in putting the machinery of the law in motion, a more liberal construction must be given to the general words. Unless a construction were given to ‘other person’ so as to include a private prosecutor, it is not easy to see what meaning they could have. It is not to be supposed that they were intended for the protection of the policeman who carried the warrant into execution, or of the gaoler who received the prisoner in virtue of that warrant.

Then, next, in regard to the enactment in the Day Trespass Act itself, the pursuer contends that it cannot be invoked in the defender's aid, because it is said that the prosecution was not instituted ‘in pursuance of this Act,‘ and this because it is alleged that the defender had no title to prosecute under the Day Trespass Act. The trespass complained of took place on the farm of Dumyat, of which it is admitted the defender is the tenant, and it is also admitted that he has the lease of the game from the proprietor, Lord Balfour of Burleigh. If interest would give a title to sue, therefore, the defender undoubtedly possessed it. But it is maintained that interest alone is not sufficient, and that the Procurator-Fiscal alone has a title to sue. Now, the 1st section of the Day Trespass Act does not specify at whose instance a complaint shall be made. It simply says, ‘that if any person whatsoever shall commit any trespass by entering or being in the day-time upon any land without leave of the proprietor in search or pursuit of game,’ such person on being convicted incurs the penalties thereby provided. The 2nd section, however, is more distinct upon this point, for it enacts, that ‘Where any person shall be trespassing upon any land in the day-time in search or pursuit of game … it shall be lawful for any person having the right of killing the game upon such land, or for the occupier of the land, or for any gamekeeper or servant, or either of them, or for any person authorised by either of them to require the person so trespassing forthwith to quit the land whereon he shall be so trespassing, and also to tell his Christian name, surname, and place of abode,’ and if the trespasser refuse to give his name, or refuse to quit the land, any one of the persons specified may apprehend him and take him before a Justice of the Peace. Now, if this section be read along with section 1, there can be no doubt as to the title of the defender to prosecute, seeing that he, and he alone, has the right to kill the game upon the land. It would be very odd to allow him to apprehend the trespasser who refuses to quit the land, and yet to deny to him the right and title to present a complaint to the magistrate against the trespasser. This plea of no title to sue was stated in the case of Russel v. Colquhoun (24th November 1845, 2 Broun's Just. Rep. 572), where the proprietor who had not let the game, but kept it in his own hands, presented a complaint

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against a trespasser, and a conviction followed. In a suspension it was pleaded that the petition to the Justices was incompetent without the concourse of the procurator-fiscal, but this ground of suspension was held to be unfounded, and the bill was refused. Now, this seems to be a judgment directly in point, because there is no express authority given under the 1st section of the statute to the proprietor to lay a complaint against a trespasser, any more than to the game tenant or the procurator-fiscal himself.

But even supposing that the case were otherwise, and that only the procurator-fiscal or the proprietor of the lands could prosecute, still the case is within the protection granted by the statute. It is difficult no doubt to draw the line between the cases where the protection cannot be granted, and those where it is granted. The latter class are not limited to proceedings which are regular, for these need no protection. They include cases of mistake either in libelling the complaint, or in the procedure, or in allowing incompetent evidence, or drawing erroneous inferences from the evidence. It is only in cases where the proceedings are entirely without warrant of law that the Court would refuse the protection, while it is extended to those cases where all that can be said is that the law has not been accurately carried out. Now, what is the case here? The whole procedure that took place was perfectly regular on the assumption that the defender had a title to sue, and if he had not, his mistake in regard to that was justifiable, seeing that it has been determined that a proprietor can prosecute, and he had all the rights in the game which the proprietor had, and might very reasonably have supposed that he had the same mode open to him of protecting the game that the proprietor had. The proceeding, therefore, was instituted in the execution of and in pursuance of the Act.

These protecting clauses have been fully considered and commented upon in various cases under different statutes in recent years, of which the following are the more important:— Murray v. Allan and Others (29th November 1872, 11 Macph. 147); Russell v. Lang (25th June 1845, 7 D. 919); Mackay v. Chalmers and Others (5th Feb. 1859, 21 D. 443); Dudgeon v. Roberton (28th Jan. 1859, 21 D. 351); Melvin v. Wilson and Others (22nd May 1847, 9 D. 1129). In expressing the opinion which he has now done, the Lord Ordinary has endeavoured to give effect to the principles sanctioned by these decisions.”

The pursuer reclaimed, and argued—That in instituting the complaint under the Day Trespass Act the complainer only libelled himself as tenant of the lands, and made no claim to being the game tenant. He must stand or fall by the title he libelled himself. As tenant of the lands he was not entitled to the benefit of the Day Trespass Act, which was reserved for landlords only. The complainer's title was ab initio bad, and when a title was ab initio bad bona fides could not be pleaded.

Authorities— Russel v. Lang, June 25, 1845, 7 D. 924; Murray v. Allan, Nov. 29, 1872, 11 Macph. 147; Wellwood v. Husband, Feb. 11, 1874, 1 R. 507; M'Kenzie v. Maberly, Nov. 21, 1859, 3 Irv. 459; Smellie v. Lockhart, 2 Broun Just, Cas. 194; Lister v. Borron, 9 Adol. & Ell. 654.

Replied for defender—No doubt a mistake had been made in libelling the complainer's title, and if proceedings had been commenced in due time some redress might have been obtained. Under the protecting clauses founded on, a defender was entitled to three things—(1) a month's notice in writing before any action was brought; 2) that no action should be brought after two months; (3) the right to exclude any action brought outwith the six months. All these were essentials seen awanting here. The defender was entitled to the benefit of the protecting clauses, as his only offence was a failure to libel his full title.

Authorities cited by Lord Ordinary, and Russel, 2 Broun 572, and Murray v. Allan, Nov. 29, 1872, 11 Macph. 147.

Section 7 of the Ground Game Act 1880 was also quoted at the debate. That section is quoted in the opinion of the Lord President.

At advising—