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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gosling v. Walter Brown [1878] ScotLR 15_434 (9 March 1878)
URL: http://www.bailii.org/scot/cases/ScotCS/1878/15SLR0434.html
Cite as: [1878] SLR 15_434, [1878] ScotLR 15_434
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SCOTTISH_SLR_Court_of_Session
Page: 434↓
Court of Session Inner House Second Division.
[Exchequer Cause.
v.
v.
Game
Facts:
A tenant-farmer holding a gun licence under the Gun Licence Act 1870 instructed his sons, who held no licence, to carry his gun to scare birds and shoot vermin on the
Page: 435↓
farm. They each shot a rabbit, and on being charged with an offence under the Act for carrying a gun without a licence— held ( diss. Lord Ormidale) that there was no offence, in respect that the accused were persons carrying guns for the purpose only of scaring birds or of killing vermin on the lands by order of the occupier thereof, who had in force a licence under the Act, all in terms of the 4th sub-section of the 7th section of the Act. Held ( diss. Lord Ormidale) that in relation to the crops of a farm, under the abovementioned Act, rabbits are vermin, and that they have no protection from the law as regards a tenant-farmer, although in other circumstances and places they may be property, and require a game licence to kill them.
These were cases stated for the opinion and judgment of the Court of Exchequer by the Quarter Sessions of Dumfriesshire, in terms of the 84th section of the Act 7 and 8 Geo. IV. cap. 53. An information was laid under “The Gun Licence Act 1870” (33 and 34 Vict. c. 57) charging each of William and Walter Brown with an offence under that Act, in so far as on 31st August 1877, at the farm of Hillhead, in the parish of Kirkpatrick-Fleming, they each carried a gun without having a licence in force under the abovementioned Act.
The 7th section of the Act provides—“Every person who shall use or carry a gun elsewhere than in a dwelling-house or the curtilage thereof without having in force a licence duly granted to him under this Act, shall forfeit the sum of ten pounds: Provided always that the said penalty shall not be incurred by the following persons, namely—…….
(4) By the occupier of any lands using or carrying a gun for the purpose only of scaring birds or of killing vermin on such lands, or by any person using or carrying a gun for the purpose only of scaring birds or of killing vermin on any lands by order of the occupier thereof who shall have in force a licence or certificate to kill game or a licence under this Act.”
The information was tried before two Justices of the Peace at Annan on 19th November 1877. The accused pleaded not guilty, and the Justices, in respect of the evidence adduced, assoilzied them, whereupon the Excise officer, Nathaniel Gosling, gave notice of appeal to Quarter Sessions.
The facts of the case as stated by the Justices were as follows:—The accused are sons of Robert Brown, tenant and occupier of the farm of Hillhead, and reside with him there. Robert Brown holds a licence under the Act, and instructed his sons (who hold no licence under the Act) to carry his gun to scare birds and shoot vermin on the said farm. On 31st August 1877 William Brown shot a rabbit upon the farm of Hillhead, and Walter fired at one and missed it, but thereafter fired at and killed another rabbit.
The Justices in Quarter Sessions upon these facts dismissed the appeal, holding that the penalty was not incurred, in respect that the accused was a person carrying a gun for the purpose only of scaring birds or of killing vermin on the lands by order of the occupier thereof, who had in force a licence under the Act, all in terms of the 4th sub-section of the 7th section of the Act.
It was argued for the appellant (whom the Court called upon, though no appearance was made for the respondent) that rabbits were not vermin in the sense of the Act, but that vermin might be described as “any small noxious wild animals, ” whereas rabbits were used largely as food.
At advising—
The charge against the accused was that of carrying a gun without having a licence in terms of that statute, and the statutory penalty of £10 was concluded for.
The facts of the case are thus stated by the Quarter Sessions—[ reads ut supra]. On this state of fact the Justices assoilzied the accused, and on appeal to the Quarter Sessions they, as stated in the case, dismissed the appeal, “holding that the said penalty was not incurred, in respect that the accused was a person carrying a gun for the purpose only of scaring birds or of killing vermin on the said lands by order of the occupier thereof, who had in force a licence under the said Act, all in terms of the 4th subsection of the 7th section of the said Act.”
It is maintained on the part of the Excise—first, that rabbits are not vermin in the sense of the Act; and secondly, that the facts thus found prove that the accused was not carrying a gun for the purpose only of scaring birds or of killing vermin.
The clause under which the Quarter Sessions proceeded is the following—[ reads ut supra].
Taking the last of these pleas first, I assume, from the finding of the Quarter Sessions, that on the evidence before them they did not find any ground for holding that the purpose for which the gun was ostensibly carried was not the true purpose, and did not draw any contrary inference from the fact that a rabbit was shot by the accused. The Quarter Sessions, however, have not explained whether this conclusion in point of fact was arrived at from holding that rabbits are vermin, or from holding that there was no evidence to show that the purpose of carrying the gun was other than that authorised by the statute, even although rabbits should be held not to be included in that category.
Although the ground is narrow, I am not disposed to disturb the judgment of the Court below on this question, which seems one solely within their province. They are the judges of the purpose with which the gun was carried; and although they arrive at their conclusion by an inference, that inference is one of fact, of which they were the appropriate, and indeed the exclusive, judges.
I am, however, quite prepared to deal with the
Page: 436↓
I must advert in the outset to the position in which the tenant of the farm in question stood, and the rights which he possessed in the protection of his crop, and to the true question which the Excise have raised here. On one hand, the tenant was himself entitled to kill the rabbits on the farm, precisely as he was entitled to kill any other noxious animal which injured the fruits of the earth and was not under special statutory protection. He was entitled to do this by himself or any person authorised by him. He could not indeed destroy them by shooting without having a gun licence; but if he had one, he was entitled to use the privilege of his gun by anyone he chose to appoint for the purpose of protecting his crops from the depredations of birds and destructive wild animals or vermin. Such at least I gather to be the policy of this exception in the Gun Licence Act. But the Excise maintain that he may not delegate his gun to anyone for the purpose of protecting his crops from one species of destructive wild animal, namely, rabbits; and that consequently the tenant must take out a fresh gun licence for every servant whom he may for the time authorise to shoot rabbits. I think this would be a very oppressive, as I think it is an entirely erroneous, construction of the statute.
The term “vermin” used in this clause has no generic signification but that of a destructive wild animal. It has a popular signification, varying, however, with the subject to which it is applied. It must be read according to the subject-matter in connection with which it is used; and as the clause in question has relation to the tenant's right to protect his crops, the word must receive the signification necessary to that end. A rabbit no doubt may be preserved—it may be kept in a warren or in a hutch, when it may be property, or in a cover, when it may even require a game licence to kill it. But in relation to the crops of a farm it is vermin, and nothing else. It has no favour or protection from the law as regards the tenant-farmer, and he is entitled to kill it, simply in its character of vermin, unless he has contracted to the contrary.
A rabbit is certainly not game, as has been repeatedly found ever since the case of Moncreiff and Arnott, February 13, 1828, 6 S. 530. We took occasion in the recent case of Inglis v. Moir's Tutors, December 7, 1871, 10 Macph. 204, to reassert the doctrine, and it is clearly recognised in the Game Certificates Act of 1860 (23 and 24 Vict. cap. 90).
Doubtless animals which are in their nature vermin in relation to the fruits of the earth may yet be protected by the law. Some are sought after for their flesh, some for their skins, some merely for sport, but when not protected they continue to be vermin. A fox is eminently vermin. Yet a game-tenant in Leicestershire who undertook to keep down the vermin would hardly be bound to shoot and trap the foxes. The term, as I have said, must be read in its reasonable sense in relation to the matter in hand. In the case of Inglis I said that a tenant was entitled to kill rabbits just as he might kill rats, and I think both animals are precisely in the same category as regards the tenant's crops. I know of no animal that can infest a farm to which the term vermin can be more appropriately applied than a rabbit, which in that respect is probably the most destructive of the class to which I think it belongs.
It was contended on the part of the prosecutor that the deliverance appealed against is erroneous, and ought to be reversed, in respect that on the facts stated it appeared that the accused had on the occasion in question carried and used a gun without the requisite licence in terms of the Act. On the other hand, it may be said that the deliverance of the Justices is right, in respect, as stated by them, “that the accused was a person carrying a gun for the purpose only of scaring birds or of killing vermin on the said lands by order of the occupier thereof, who had in force a licence under the said Act, all in terms of the 4th sub-section of the 7th section of the said Act.”
There are thus disclosed two grounds upon which the deliverance of the Justices is or may be said to be maintainable—1st, that rabbits are vermin, and therefore that the killing of one rabbit and shooting at another by the accused did not require a licence; and 2dly, that the accused was on the occasion in question carrying a gun for the purpose only of scaring birds or vermin by order of the occupier of the lands, who had in force a gun licence.
Now, I must own that I can entertain very little doubt that rabbits or conies are not vermin, by which I understand noxious and worthless animals. Rabbits or conies are valuable animals, and fetch considerable prices in the market, and have always had a certain measure of protection. Accordingly although they are not classed with game any more than snipe or woodcock or deer in the existing Game Act (the 23 and 24 Vict. cap. 90), they, along with snipe woodcock and deer, are mentioned in section 2 of that Act as birds and animals which, except in the exempted cases referred to in section 4, require that a person must have a certificate in terms of the Act to entitle him to kill or shoot them. I cannot, therefore, hold that rabbits or conies, any more than snipe or woodcock or deer, can be dealt with under the Gun Licence Act as vermin merely because they are not classed as game under the Game Act, and I am not aware that they have ever been so considered or dealt with in any Act, although they are mentioned and referred to in many. On the contrary, rabbits or conies, besides falling under the Game Certificate Act, although not classed as game, are also expressly mentioned and dealt with along with game under the Poaching Acts, 9 Geo. IV. cap. 69, and 7 and 8 Vict. cap. 29. And what is perhaps still more important, it is by the 40 and 41 Vict. cap.
Page: 437↓
I have therefore to repeat that I cannot consider and deal with rabbits under the Gun Licence Act as vermin, although undoubtedly they are very destructive to crops, just as hares and pheasants are, although in a less degree.
But then it is said, taking the case as it is stated on record, that the accused must be treated as a person who on the occasion in question was carrying a gun, “for the purpose only of scaring birds or killing vermin, ” notwithstanding that he did in point of fact kill one rabbit and fire at another, and therefore that the Justices were right in their deliverance. For myself I have found it impossible to adopt this conclusion, and when the case before the Court is closely examined I am unable to see how it can be supported. The Justices first state the facts, as they were bound to do, and then proceed to draw their conclusion from “these facts.” Now, the only fact stated that can give any support to their conclusion is that the accused's father, who holds a licence under the Act, instructed his son, who holds no licence under the said Act, to carry his gun to scare birds and shoot vermin on the said farm, but how this, the mere instruction of the father, should exculpate the son, who disobeyed his father's instruction, and shot one rabbit and tried to shoot another, I fail to see. If it had been stated as matter of fact that in his endeavours to scare birds and kill vermin the accused had accidentally or unintentionally shot a rabbit, the case might have been different, but I am unable to hold, with the Justices, that because the accused had been instructed by his father “to carry his gun to scare birds and kill vermin” he is not liable in the penalty charged, for it must be kept in view that it is not the father, but the son, who is charged with having incurred the penalty. And it ought also to be borne in mind that the onus is by section 7 of the Act laid upon the accused to show that he did not commit the offence imputed to him.
In these circumstances, and for the reasons I have stated, I am of opinion that the deliverance of the Justices ought to be reversed, both in this and the other case against William Brown. At the same time, I should regret very much if such a judgment were to prejudice farmers in the protection of their crops, but I cannot think it would do so, as I believe that it is not by shooting, but by trapping and other means, that rabbits are usually kept down. But I am not without fear that to sustain the deliverance of the Justices might lead to a not unfrequent evasion of the Gun Licence Act, a Fiscal Act of some importance.
But, in the next place, even supposing we hold that the Justices here meant that the accused were out for the purpose of killing rabbits, then in that case also I agree with my Lord Justice-Clerk, that rabbits are in the sense of this Act and of this clause of this Act vermin. Vermin are described as destructive and noxious wild animals, either to sportsmen or to farmers, as the case may be, for what is vermin to the one may be quite the reverse to the other. Thus, a weasel to a sportsman is certainly vermin, but to the farmer it scarcely would be so. Here the exception in the Act is, as I read it, an exception in favour of the farmer, who under it has conferred upon him the power to shoot what is regarded as vermin from his point of view.
The Court dismissed the appeal, and sustained the decision of the Justices in Quarter Sessions.
Counsel for Appellant— Rutherfurd. Agent— Solicitor of Inland Revenue.
For the Respondents—No appearance.