Scottish Court of Session Decisions

In the month of January, 1832, when there was a very general alarm of cholera morbus throughout the country, and after it had made its appearance at Haddington and Musselburgh, one Smith, a rag-collector in the parish of Kirknewton, having collected in it and the adjoining parishes, a quantity of rags for the respondent Glenny, a rag-merchant in Edinburgh, whom he was in use to supply, deposited them in his own house in the parish of Kirknewton. Having been ordered by a constable to remove the rags from thence, he, on the 3lst January, sent them in a cart to Edinburgh, but the cart was stopped by the constables stationed at that time at the entry of the town, with a view to protection against infection, who refused to let the rags pass. On this, the carter in charge of them, who was a friend of Smith's, leaving the cart and rags where they had been stopped, went himself into the town, and obtained from Glenny, but without telling him of the stoppage, the following letter, addressed to one Logan, tenant of a paper mill at Balerno, in the parish of Currie, which adjoins Kirknewton:—“Dear Sir,—You will please take in these rags for me, and send the man a note of the weight of them, and let them be with you until you hear from me. Put them into a safe place, and oblige, dear sir, yours ever.”

The carter thereupon drove the rags out to Currie, offering them for sale, but unsuccessfully, at a mill by the way, and delivered them to Logan, who received them into his mill. The exciseman stationed at the mill, however (a person named Patrick), having enquired of Logan where the rags came from, was told by him that “they came from Musselburgh or Haddington, or from some other of these damned diseased places,” and that “the magistrates of Edinburgh would not allow them to be put up there;” and thereupon, he immediately went and communicated this to the Rev. Mr Somerville, minister of Currie, and a member of the Board of Health of that parish. The carter who brought the rags had also let out, that they had been ordered out of Kirknewton, and refused admittance to Edinburgh; and on this, a deputation of the Board of Health, consisting of the advocator, Davidson, and Colonel Scott, went to Logan's mill, and challenged him for receiving the rags, Logan answered, that, if the Board desired it, he would remove the rags; and accordingly, he himself opened the door of the mill, and tumbled out the rags, which were contained in sacks. Colonel Scott and Davidson then directed a constable to procure a cart for the purpose of taking them back to Kirknewton to Smith's. A cart and horse were accordingly procured, but the owner having refused to let his horse go so far, as he had already travelled a considerable distance that day, they were carried to a haugh on the property of Colonel Scott, and the cart, with the rags in it, placed for the night under the shelter of a plantation. Next day they were taken to a field surrounded by a high wall, and having a gate with a lock on it, and there deposited, some brushwood being laid under them, and some loose straw, taken from a neighbouring feeding-shed, placed over them.

Glenny having been immediately made aware of the seizure, wrote to the Sheriff of Edinburgh on the subject, but without making any formal application, and the Sheriff thereupon wrote Davidson, giving his opinion, that, unless he were certain that the rags had come from Inveresk or Musselburgh, he should return them to Logan's Mill. The Board of Health, however, merely intimated to Glenny (by letter of the 4th February) that he might remove them where he pleased “out of the parish,” while Glenny, on the other hand, refused to do this, and insisted that the Board should themselves remove them, and take them back to Logan's Mill. At a meeting of the Board of Health, held on the 6th February, Smith, who had come over from Kirknewton on hearing of the detention of the rags, offered to take them away if Glenny's consent were obtained, and accordingly a messenger was despatched on horseback to Edinburgh to ask Glenny for an order to remove the rags, Smith waiting till he should return. This application, however, Glenny refused, saying to the messenger, “I'll give you an order to remove the Board of Health.” In the mean while the rags had remained where they had been deposited, all access being prevented, and men being employed to watch them every night, and, after eight or ten days, they were, by direction of the Board, built up into a stack and regularly thatched with straw about nine inches thick, both on the top and all round. There was some discrepancy in the evidence taken in the Court below as to what sort of weather prevailed during the period preceding the thatching, though it rather appeared that the first night had been frosty without rain, and that afterwards there had been a considerable quantity of rain; but it was deponed to, that, when the rags were so put up and thatched, they were found to be, with little exception, dry and in good condition.

On the 17th February, Glenny raised an action of damages against Davidson before the Sheriff, concluding for the full value of the rags. A proof was allowed, by which the circumstances above detailed were established; and there was further adduced on the part of Glenny the evidence of respectable individuals engaged in the manufactory of paper, to the effect that the allowing rags to be wetted was injurious to their quality, and, if not properly and speedily dried, destructive of them. The Sheriff, on advising the proof, pronounced the following interlocutor:—“Finds that the defender has not proved circumstances sufficient to authorize his having ordered the rags in question to be taken from Logan's Mill at Balerno, and to be placed in Mr Glen's field at New-mills; finds it sufficiently instructed that the rags would be so much deteriorated by being placed in that field, in consequence of the rain and wet, that they would be of no use to the pursuer: Therefore decerns against the defender for the sum of £14, 10s. 9d., with interest from the date of citation; finds the defender liable in expenses, with the exception of those incurred by the pursuer between the 22d November, 1832, and 1st February last; allows an account to be given in, and decerns.”

Davidson thereupon brought an advocation, in which he contended—

1. That the Board of Health, by whose directions he had acted, were, in the suspicious circumstances in which the rags were brought to the parish of Currie, warranted in taking the precautionary measures adopted by them; and,

2. That Glenny having improperly refused to take the rags away, or to allow Smith to take them when he offered to do so a few days after the seizure, and when no damage could have been suffered, was precluded from insisting in his present demand.

To this it was answered, that there was no proof of the Board of Health having been legally constituted, and at any rate that such Boards of Health bad no powers to seize or remove goods, so that their proceedings were altogether unwarranted and illegal, and that having persisted in refusing to allow the rags to be returned to Balerno Mill, even after they must have been satisfied of the groundlessness of their suspicions, and notwithstanding the recommendation of the Sheriff, they had subjected themselves in damages, while Glenny was in no respect bound to take the rags out of the parish, the more especially after by exposure they must have been very greatly deteriorated.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Advocates the cause, and recalls the interlocutor of

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^* “Though the Lord Ordinary concurs in the result of the sheriff's judgment, he does so only on the strict law of the case, and cannot concur either in the findings of the interlocutor, or in the view which the sheriff appears to have taken of the proof. He therefore finds it necessary to dispose of the cause in the terms above expressed.

“The Lord Ordinary 1st of opinion, 1. That there were in the circumstances of the case grounds sufficient to induce the defender and the Board of Health with whom he acted, to remove the rags in question, under any risk as to the strict legality of their authority so to do. 2. That the circumstances were such that they had a right to expect that the pursuer would act reasonably, and take away the rags, however he might make a claim for any actual loss sustained. 3. That upon the proof the pursuer did not conduct himself with the fairness and propriety which, in the state of the country at that time, every man of his station was bound to observe. And, 4. That it is not proved that the rags were rendered useless, but on the contrary, the very reverse is proved as matter of fact. In this last point, the sheriff's interlocutor finds a hypothesis, and not a fact. The Lord Ordinary thinks the finding incorrect in any view.

“That there was, at the time in question, a very great alarm in the country, and especially in Edinburgh and the vicinity, on the subject of cholera morbus, is matter of notoriety. It is proved by the existence of the Boards of Health. If the disease was not actually in the parishes of Kirknewton and Currie, that may be greatly attributed to the prompt precautions taken.

“That there was alarm in both parishes as to danger from such gatherings of rags, is fully proved;—proved as to Kirknewton by the fact of the constable, under written orders of the justices, actually forcing these very rags to be removed from the parish. See Nisbett, p. 26; Murray, p. 27. Proved as to Currie by direct evidence. Patrick, p. 25, C.; Henderson, p. 34, F.; Clark, p. 32, E.

“That these rags were thought dangerous at Edinburgh is proved by the fact, that they were stopped there by constables stationed for the purpose, and not allowed to enter the city.

“The case, then, was, that these rags, after being turned out of Kirknewton, and stopped at Edinburgh, as dangerous, were brought to Balerno, not for trade, but to be stored or kept till they could be disposed of. For, notwithstanding Mr Logan's very uncandid endeavour to make this doubtful, it is distinctly proved that the rags generally were not such as he used, or would have purchased for the business of his paper-mill; and that they were, in fact, sent under an express written instruction, merely to ‘take them in,’ and keep them till further instructions. See letter, p. 47; Patrick, p. 26, B. C.; Henderson, p. 33, B. C.; Flint, p. 38, D. E.

“The statute 1617, c. 8, § 13, gives express power to the justices of the peace ‘to set down order in the country for governance in time of plague;’ and looking to the terms of the statute, 40th George III., c. 10, § 12, the Lord Ordinary is inclined to think, that, in fair construction, this might be extended to ‘any such infectious disease or distemper.’ If it had appeared upon this record, that the thing done was by order of the justices, he would have had great doubt whether there was any cause of complaint at all.

“For, it is further proved, that, though at first the persons who brought the rags to Balerno made evasive statements, which led to a belief that they came from Haddington or Musselburgh; and though Mr Logan, by his own account, after examining the carrier, told the defender simply that they had come from Kirknewton, suppressing the journey to Edinburgh altogether, the fact was made known that they had been to Edinburgh, and had been stopped there, See Henderson, the constable, p. 33, C, D.

“The evidence is contradictory as to what followed. The Lord Ordinary can Only say, that he cannot put that degree of faith in the statement given by Logan against Patrick, the excise officer, which the sheriff seems to have done.

“There is a discrepancy in the evidence as to whether the night on which the rags were first put out was wet or dry. But Henderson, who watched them all night, swears that there was no rain, but a strong frost. He is confirmed by Smith as to its being frost the morning after, p. 23, D.; and by M'Lagan, whose husband had also watched, p. 42, 6.

“Then it appears, that, on the next day, Smith offered to take away the rags, if the pursuer consented. And though the pursuer, in his replies, p. 3, very uncandidly stated that he never heard a word of this, it is proved by Clarke, p. 32, that he was sent on purpose to obtain his concurrence; that he delivered the message to himself personally, and that he delivered his refusal in terms sufficiently indicate re of the spirit by which he was actuated.

“The rags, in consequence, remained in the field. There is great difference in the evidence as to the degree of care taken of them. The Lord Ordinary cannot but think the matter very much exaggerated by the pursuer's witnesses. But it is clear that there were men employed to watch them for two or three weeks; and that, after a few days, they were completely thatched over, like a stack. The pursuer has brought a great deal of hypothetical evidence, of a respectable character, as to the effect of such rags getting wet, to injure them, or render them useless; and the sheriff has put this hypothesis into his interlocutor as a ratio decidendi. But against this, independent of all the other evidence as to the care taken, there is direct proof that, even in the month of March, more than a month after the thing happened, nearly the whole of the rags were in perfectly good keeping, and scarcely, if at all, deteriorated. Orme, p. 86, &c, and Flint, p. 38. And this, indeed, is confirmed to a great extent by Mr Walker, a witness for the pursuer, p. 40, though he cannot say whether it might not be even ten weeks after the thing happened, before he examined the rags.

“The Lord Ordinary certainly thinks that such direct proof of a fact cannot be contradicted by hypothetical opinions. Either the rags were not wet in any material degree, or the opinions are erroneous.

“The result seems to be, that, though some injury might be sustained, it is out of the question to say that the rags were rendered useless; and that, if there had been nothing else in the matter, the assumed injury would not by itself have justified the pursuer in refusing to take away the rags, or allow Smith to take them, on the day after they were removed from the mill, or even many days thereafter.

“On the whole case, though the Lord Ordinary feels himself constrained to give judgment against the defenders in point of law, and thinks that in doing so he must give expenses, he has thought it a matter of justice to express his opinion on the general complexion of the case, in order that, if it should go before the Court, it may be seen, that it is solely upon strict law, and not upon the evidence, as impeaching the propriety of the advocator's conduct, that ho gives this decision.”