Scotland's very own David versus Goliath

 William Louis Winans was a pretty disgusting fellow, the son of one of the first of America’s railroad multimillionaires, who from around 1860 lived mainly in Britain, with occasional trips to the rest of Europe, including Russia. He didn’t like people very much; on taking the lease of an expensive townhouse in London he took the one next door as well, to avoid having neighbours. He had a habit of booking all the seats at a performance, so that he and a couple of friends could watch the show without being troubled by the ordinary people.

We learned about him when studying international law, as after his death there was an argument about his domicile, to decide which country got the death duties. In support of the idea that he had kept his American domicile his family argued that despite having never returned it was only his fear of sea sickness that had kept him in, by this time, Scotland. They produced as evidence details of his cigar ship, which was supposed to take him back safely.

The posthumous litigation wasn't his only brush with Scots law, however. In 1882 he started renting shooting estates and by 1887 he had accumulated a total of over 220,000 acres, extending more or less across Scotland. On one of them, Morvich in Glen Shiel, lived a poor cottar and shoemaker, Murdoch Macrae, with his wife and family. One day he found a badly injured lamb, about three weeks old, and took it home where his wife nursed it back to health. For a time it stayed in the house, but eventually it became strong enough to venture out.

One day Mr Winans found the lamb on his land, which had no fences to keep straying animals out. He immediately sued Mr Macrae for an interdict, which, after an initial interim one was granted, went to debate before the local Sheriff. He refused it, on the basis that the lamb had caused no discernable damage.

Winans was of course enraged by this and had the interdict granted on appeal. One is tempted to wonder if perhaps the compliant Sheriff Principal, a senior QC, might have been thinking about a shooting holiday. Many were disgusted by this development, including Winans’ landlord, Mr Mackenzie of Kintail, who said that hadn’t believed the story when he first heard it.

It may surprise people that in those Victorian days, long before civil legal aid came in, lawyers saw it as their professional duty to devote time working for the poor with no expectation of payment. In fact this was still part of the tradition when I joined the profession in 1970 and remained until advertising came in and “pro bono” work became only a way of drumming up trade. Mind you, there are still some decent, ethical exceptions! Cottars were the poorest sector of society, owning nothing and doing what they could to survive. William Winans must have got a shock when his adversary was duly represented in Scotland’s highest court and again when Murdoch Macrae won the appeal.

Lord Young is one of my all time favourite judges, known for fairness and independence of mind. You can identify him in the famous group portrait in Parliament House, as he’s the only one without a huge cross on his robes. Essentially, the court ruled that there was no remedy in the absence of damage, “de minimis non curat lex”.

Winans v Macrae 1885, 22 SLR 692