Scottish Court of Session Decisions

Subject_1 GAME.

Mr David Gregory
v.
Wemyss of Lathockar

1753, Feb. 3.
Case No. No. 1.

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Gregory having gone a fowling with a dog and gun with one Baird with him who had another gun, Wemyss met them and took Baird's gun from him as having no right to fowl. Gregory sued him before the Sheriff, who ordered restitution of the gun, and found expenses due. Wemyss advocated the cause, and offered to prove that Baird was a common fowler in terms of the act 1707, and that he killed and sold wild fowl, shot hares, &c. Gregory denied the fact, but alleged not relevant unless he made it a trade, or 2do, if he were such yet he could not seize and detain the gun without suing for confiscation; 3tio, that Baird was only carrying another's gun for his use and that the gun was his. Replied, Killing for sale is the character of a common fowler, and in proof thereof the Judge should confiscate the gun to the defender who apprehended it, and that Gregory had not properly his property of the gun, and if he had, non relevat, since Baird a common fowler had the use of it. I reported the case, and the Lords repelled the reasons of advocation, and remitted the cause. Renit. Drummore, Haining, Strichen, Kilkerran, et me.—23d January 1753, Adhered.