Scottish High Court of Justiciary Decisons

LORD BLACKBURN .—This stated case raises a very short point, although it is one of some importance.

The two respondents were charged with an offence under the Tweed Fisheries Amendment Act, 1859, in respect that, during the close season, and in the neighbourhood of the Tweed near Peebles, they were found in possession of four salmon, which at the time they were conveying in a side-car attached to a motor cycle. They pleaded guilty, and accordingly, in terms of section 10 of the Act, they became liable not only to a fine of not less than 10s. and not exceeding £2 in respect of each salmon found in their possession, but also, in the words of the section, to the forfeiture of "every such salmon, and every boat, cart, basket, or package in which the same may be found."

When the case came before the Sheriff-substitute the appellant moved for sentence and for forfeiture of the motor cycle and side-car in which the salmon had been found. The respondents opposed the crave for forfeiture, on the ground that the words used in the Act were not applicable to a motor cycle and side-car. The learned Sheriff sustained this objection but, as he says himself, "solely upon the ground that the said motor cycle and side-car in which the salmon were found did not fall within the objects that might be forfeited under section 10 of the Act." Hence this appeal.

The respondents did not appear in support of the Sheriff's finding, and we did not have so full a debate upon the question as we might otherwise have had. But Mr Murray, who appeared for the appellant, dealt with the question from every point of view, and, I think, anticipated and dealt with every argument which might have been submitted for the respondents had they appeared.

In my opinion the words in section 10 of the Act were intended to cover every sort of conveyance by which the salmon could be conveyed, whether by land or by water or by hand and in which they might be found, the "boat" applying to conveyance by water, the "cart" to conveyance by land, and the "basket" or "package" to conveyance by hand, and, in my opinion, the meaning of the words used should not be restricted so as to exclude methods of conveyance which have been developed by modern science and which were unknown at the date of the Act. It could not, I think, be disputed that, if the salmon had been found in a motor boat, the motor boat would fall to be forfeited within the precise meaning of the words used in the Act, although at the date of the Act a motor boat was as unknown as a motor cycle and side-car. That being so, I seen no reason why the meaning of the word "cart" should be restricted to a conveyance drawn by horse or by hand such as was familiar at the date of the Act, and should not be extended to apply to a motor-drawn conveyance on the land. I did at one time entertain some doubt as to whether the forfeiture should include the motor cycle as well as the side-car, owing to the fact that, while the Act expressly refers to the forfeiture of a "cart," it makes no mention of the horse which might be used to draw the cart. We were informed that in practice the use of a horse-drawn cart for the conveyance of salmon on Tweedside was unheard of, which may account for the omission of the horse from the Act. But, in any event, a cart is not only separable from a horse but can by itself be used as a means of conveyance for salmon, while a side car, although separable from the cycle, could not if separated be so used. This appears to me to justify the forfeiture of both the cycle and the side car as a single means of conveyance.

In my opinion the learned Sheriff-substitute has taken too narrow a view of the meaning of the section, and we should answer the question put to us in the negative.

LORD MORISON .—I agree with your Lordship, and very much on the same grounds as your Lordship has indicated. It appears from the facts found in the case that this motor bicycle and side-car was used for the purpose of concealing and carrying off the fish which the accused had poached. The question of law in the case is whether the Sheriff-substitute was entitled to declare this vehicle to be capable of forfeiture under section 10 of the Tweed Fisheries Act of 1859. Your Lordship has read the section, and I venture to agree with the construction which your Lordship has put upon the word "cart." According to the dictionary definition it merely means a vehicle which is capable of carrying articles. There is an analogy between the use of the word "cart" in the section in question here and the use of the word "carriage" in the settlement discussed in the case of Denholm's Trustees to which Mr Murray referred. In that case the Lord President said (at p. 46):

"The word ‘carriage’ itself is certainly wide enough to cover any form of vehicle in which you are carried, though it has secondary significations which vary according to the context."

By a parity of reasoning it seems to me that in construing the word "cart" under this section you must read it as meaning any vehicle which can be used for the purposes of concealing and carrying off the salmon. On that ground it seems to me that the question must be answered as your Lordship proposes.

I wish to add that, in my opinion, this view is supported by one of the well-known canons of construction applying to statutes of this kind, that the Court must construe the language so as to cope with the mischief with which the statute intended to deal. Here I have no doubt that the Legislature intended that those articles which were used for the purpose of carrying off fish which had been illegally taken should be forfeited just as much as the instruments by which they were taken. For these reasons I think the question must be answered as your Lordship has suggested.

LORD FLEMING .—The Sheriff-substitute appears to have taken the view that the expression "cart" ought to be applied only to what may be called an ordinary farm cart. Having regard, however, to the object of section 10 of the Tweed Fisheries Amendment Act, 1859, I think it must have been the intention of the Legislature that the term should be given a wider signification and should be held to include any carriage that might be used for the concealment and removal of salmon. At the time the Act was passed I have nodoubt it would have been held to cover such carriages as gigs and wagonettes. I think it is legitimate and necessary to extend its meaning in accordance with the development which has taken place in the means of transport, and, in particular, I think it may now be held to cover mechanically-propelled vehicles which are used for the concealment and removal of salmon. I accordingly agree that the question should be answered as proposed by your Lordship.