Power is not given by any statute for summarily seizing either the person of a common fowler, or his guns and nets.
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The broad lands of Leuchars lying in run-ridge, belong partly to the barony of Leuchars, the property of the York-Buildings Company, and partly to the lands of Earlshall in possession of Wemyss of Lathockar, in right of the heiress his spouse. The barony of Leuchars is under a long tack, to which an infant having right, Mr David Gregory, Professor of mathematics in the University of St Andrews, one of the tutors, was in use to hunt on these lands.
One day Mr Gregory, hunting for partridges in said broad lands, accompanied with Robert Baird the ground-officer of Leuchars, who carried a spare gun to save frequent charging, Mr Wemyss attacked the servant and wrested the gun out of his hands. This produced a process before the Sheriff-depute of Fife, who found, “That it was unwarrantable in the defender to seize the gun libelled, and therefore decerned the gun to be restored, and for expenses of process. But in respect it did not appear that the pursuer was entitled to hunt, assoilzied from damages.” This cause being removed to the Court of Session by advocation, the defender urged this point, That Baird was a common fowler, and that by the act 13, Parliament 1707, the defender was entitled to apprehend Baird, and take his gun from him. The pursuer denied that Baird was a common fowler; but, to avoid a proof in a trifling cause, supposing the fact, he betook himself to the relevancy that there is no authority from the act 1707, nor from any statute, to seize or apprehend via facti Baird's gun; for 1mo, Baird was not in terms of the clause hunting, but only carrying his master's gun. 2do, It is only the common fowler's own gun which can be forfeited. 3tio, No power given by any statute for a summary seizure, either of the person of a common fowler or of his guns or nets. And the describing an informer as an apprehender, will not bestow a privilege contrary to common law. 4to, That by the word apprehender cannot be intended a power of summary seizure, must be clear from this, that if it has such a meaning, it must bestow a power to seize the person of the common fowler as well as his gun, which would be singular and unprecedented.
‘The Lords repelled the reasons of advocation, and remitted the cause.’
N. B. The act 5to Annæ, cap. 14, does not support the defender's interpretation of the statute 1707; for it only impowers landlords within their own manor's to take hares, pheasants, &c. from higglers and others who are not qualified to have the same.
Fol. Dic. v. 3. p. 248. Sel. Dec. No 26. p. 29.*** This case is also reported in the Faculty Collection:
1753. February 3.
As Mr Gregory, attended by one Baird, was beating about for game on the lands of Leuchars, Mr Wemyss, a neighbouring heritor, came up and seized the fowling-piece which Baird carried. Gregory insisted, before the Sheriff-depute for the county of Fife, that the fowling-piece, as being his property, should be restored to him. The Sheriff found, “That it was unwarrantable in Wemyss to seize the gun libelled; and therefore found him liable in restitution of it, in as good case as when he took it.”
Wemyss advocated the cause; and pleaded, That Baird was a common fowler, and had no licence to shoot from the proprietor of;the lands of Leuchars, and therefore that he was within the 13th act, Parliament 1. Queen Ann, which provides, “That no common fowler shall presume to hunt on any grounds, without a subscribed warrant from the proprietors of the said grounds, under the penalty of L. 20 Scots, besides forfeiting their dogs, guns, and nets, to the apprehenders or discoverers.” That if the forfeiture of the dogs, guns, and nets, mentioned in the statute, had been given only to the discoverer, or other prosecutor who should sue for them in the courts of law, the purpose of the legislature to preserve the game would have been ineffectual; for that if common fowlers (who are generally vagrants, their persons little known, and the places of their abode uncertain) should once escape, it would be difficult to bring thereto justice; therefore it is that the legislature, introducing another remedy, at once more summary and more effectual, has permitted their dogs, guns, and nets, to, be brevi manu apprehended, and thereby forfeited to the apprehenders; agreeable to which interpretation of the statute, the universal practice has been, and no action of damages has ever been brought by any common fowler, whose dogs, guns, or nets, have been so forfeited; from all which, Wemyss subsumed, that he had the authority of law for what he had done.
Pleaded for Gregory; The words of the statute, apprehenders or discoverers, are evidently synonymous terms, and relate to a legal prosecution; were a summary apprehension and forfeiture permitted, the cognizance of the offence would be vested in the person to whom the benefit arising from the penalty would accrue; a regulation so contrary to the genius of law in general cannot be introduced, otherwise than by express statute.
‘The Lords repelled the reasons of advocation, and remitted the cause.’
Reporter, Lord Elchies.Act. R. Mackintosh.Alt. R. Dundas.
Fac. Col. No 58. p. 85.
