Scottish Court of Session Decisions

On 16th June 1877 the defender Duncan M'Arthur, farmer, Achadunan, Argyleshire, seized and poinded five cattle belonging to the pursuer William Jones, innkeeper, Cairndow, which he alleged were trespassing on his lands. He did so in virtue of the Act 1686, cap 11, which provides “that all heritors, liferenters, tenants, cottars, and other possessors of lands or houses, shall cause herd,” or enclose their cattle “so as they may not eat or destroy their neighbours' ground, woods, hedges, or planting, certifying such as shall contraveen they shall be lyable to pay half a merk toties quoties for ilk beast they shall have going on their neighbours' ground by and attour the damage done to the grass or planting;” and declares that “it shall be lawful to the heritor or possessor of the ground to detain the said beasts until he be payed of the said half merk for ilk beast found upon his ground, and of his expenses in keeping the same.” The facts in regard to the seizure of the cattle sufficiently appear from the note to the Sheriff-Substitute's interlocutor ( infra).

The pursuer thereafter presented this petition to the Sheriff for delivery of the cattle, and on the 19th June the Sheriff-Substitute ( Home) ordered the cattle to be returned upon consignment of £1 by the pursuer pending further procedure in the action.

After various procedure, the Sheriff-Substitute, on 2d February 1878, pronounced an interlocutor finding that the defender was not entitled in the circumstances to seize the cattle, and accordingly granting the pursuer authority to uplift the £1 which had been consigned.

He added the following note:—

“ Note.—[After giving reasons for finding that the piece of ground in which the cattle were first seen undoubtedly was part of the defender's farm, the Sheriff proceeded]—On the day on which the pursuer's cattle were seized the defender says he saw them grazing on this piece of ground below the public road, and sent his herd to seize and detain them. As the herd got within a few yards of them they all got on the road and went on before him for about 200 yards, when he succeeded in turning them, and when he had done so two of them had got off the road and were standing above it.

The action is founded on the Act 1686, c. 11, which, after imposing the penalty of half a merk on each beast trespassing, enacts that ‘it shall be lawful for the heritor or possessor of the ground to detain the said beasts until he be paid of the said half merk for ilk beast found upon his ground.’

The Act therefore imposes a penalty which may either be recovered like any ordinary debt, or may be enforced by detaining the cattle found trespassing. It is contended for the pursuer that as the statute does not authorise cattle seen trespassing to be seized, but only those found trespassing to be detained, there is no right given to follow cattle off the ground on which they have been trespassing unless they have been first seized—in fact that the cattle must be seized on the ground before there can be any authority to detain them. The defender, on the other hand, maintains that it is competent to follow cattle seen trespassing to any distance, and to seize them at any time that they may be found …

“But here the cattle never were under the control of the defender's servant till long after they had got on the public road, and though when he turned them two of them were on the defender's ground above the road, this was clearly the result of the act of turning the cattle on a narrow road, not an act of trespass by them on the defender's ground. The defender's servant was therefore, in the Sheriff-Substitute's opinion, no more entitled to detain these two than any of the others — in fact they were all in precisely the same position. But when the cattle got on the road the trespass ceased. They were therefore, in the Sheriff-Substitute's opinion, not found on the defender's ground, but on the road; and there was no authority for detaining them for trespass. The defender's remedy was to sue the pursuer for the half merk for each beast, not to seize them in security after the trespass had come to an end.”

The Sheriff ( Forbes Irvine) on appeal adhered, adding the following note to his interlocutor:—

“ Note.—This is a case of some nicety, but the Sheriff has come to the conclusion that the interlocutor appealed against is well founded in law. The primary object of the Scots Act of 1686 seems to be to provide for those cases where a herd of cattle or a flock of sheep, of which the ownership is unknown, is found trespassing. In such circumstances the only course open to the person who suffers by the trespass is to seize the animals brevi manu until their owner identifies and reclaims them, and till the fine and the expense of keep be paid.

It further appears that to justify this seizure the cattle must be on the ground of the seizer, and in the very act of committing a trespass. Where, as in the present case, they are allowed to pass the border, by however short a space, the arrest cannot legally be made. It would otherwise be difficult, if not impossible, to fix any limit or to know how far the right might be extended. The person suffering by the trespass might follow and poind the cattle in their owner's byre, or the sheep in their owner's fold, — a thing which the Act cannot have contemplated. Nor is the person aggrieved deprived of his remedy by this view of the Act. It appears from the tenor of the authorities that actual poinding of the cattle is not essential, and that the sufferer by the trespass may still have the benefit of the Act, and may enforce payment of the statutory penalties, provided that he brings his action at once, and de recenti supported by ‘such evidence as the nature of cases of this sort admits of,’ both as to the fact of the trespass and as to the number of the animals trespassing. ( Shaw and Mackenzie v. Ewart, March 2, 1809, F.C. 237.) By following this course he is also relieved of the burthen of tending and feeding the cattle.

In a question like this, under a statute

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peculiarly Scottish, not much help is to be expected from the practice of any other country except by way of analogy or illustration, but it is not uninteresting to observe that the law of England seems to agree with ours in this particular. In a passage which is still referred to as authority by the lawyers of that country, Lord Coke says—‘If a man come to distreyne for damage feasant, and see the beasts on his soyle, and the owner chase them out of purpose before the distress is taken, the owner of the soil cannot distreyne them, and if he doth the owner of the cattle may rescue them, for the beasts must be damage feasant at the time of the distress.’ (Coke, Inst., p. 161.)

So in Clements v. Milner, 3 Espinasse 95, an action for seizing a cow alleged to be trespassing, Lord Eldon directed the jury that if the defendant in the act of coming up to distrain the cow had actually got into the field where the cow was committing the trespass before she had been turned out of it, the justification was proved, and they should find a verdict for the defendant. If they were of opinion that the cow was actually out of the locus in quo before the defendant had got into it, though he might be in the act of approaching in order to distrain her, they must find for the plaintiff.”

The defender appealed to the Court of Session, and argued—Whenever the defendant's servant with an efficient dog and with the intention of taking possession of the cattle got within six yards of them they must be held to have been in his possession sufficiently for the purposes of the Act.

Authorities— Clements v. Milner, 3 Espinasse 95; M'Arthur v. Miller, Dec. 3, 1873, 1 R. 248.

Argued for defender—What was created by the statute was a security for a debt grounded on possession. There was not that in the present case, for before the seizure was effected the cattle were 200 yards along the public road, where they could not be lawfully reduced to possession. Possession must be obtained on the ground.

Authorities—Ersk. iii. 6, 28; Carlberg, &c. v. Borjesson, &c., Nov. 21, 1877, 5 R. 188.

At advising—