Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Archibald Kincaid of Hook v. Oswald
Date: 22 July 1709
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Kincaid and Oswald. Archibald Kincaid of Hook resolving to set a tack of part of his lands; that he might know its extent, he causes one Oswald, a sworn metster, measure it, who reported it to be 46 acres, 2 roods, and 13 falls; on the faith of which he sets it to one Lorn, a tenant; but afterwards, having some jealousy, he employs other two to remeasure it; who declare it to be 51 acres. And Oswald himself being allowed to make a second trial, he acknowledged it was 48 acres, though the sea had washen away some of the ground that was at first measured. Hook thinking himself prejudged by Oswald's false report, he raises a summons against him for damages, libelling that he set these lands for two bolls the acre; and he having measured the ground five acres short, he, by his gross ignorance, fraud, omission, or fault, had lost ten bolls every year of the nineteen of the tack, amounting to 2000 merks of damages, which he is bound to refund and make up, by the title of the Roman law,—si mensor falsum modum dixerit.
Alleged,—Esto there were an error and mistake in the mensuration, it can never make the defender liable, unless dole and fraud were libelled and proven, that he did it to get a cheaper bargain to the tenant, who was to take it by aiker-dale, and only to pay according to the number of the acres: For l. 1, sect. 1, of that same title says,—Si agri mensor imperite et negligenter versatus est, sibi imputare debet qui talem adhibuit. Neither is there any error; for, in the first report, he forbade him to measure the ends of riggs lying towards the sea, but only the arable ground; whereas, in the following mensurations, all is taken in: which makes the difference and the number of acres to swell beyond the former account. And no man could serve in any employment whatsoever, if, for every error and mistake, without fraud or guile, they should be liable in pretended damages.
Answered,—That the defender being a professed metster, and taking money and hire for his work, he must be liable; seeing imperitia in artifice, professing skill of his trade, culpœ annumeratur, L. 132, de Reg. Jur. And the laws in the same title determine that he is liable ob culpam, quia scit prœtor eos ob mercedem intervenire. And it is false that more land is contained in the second report than the first; for even the ditches, grass, and lee ground was included in measuring, both first and last. And he offers to subject it yet to a new trial, and it will be found to be no less than 50 acres, deducing what the sea has covered; so his damage is evident, solely occasioned by the said Oswald the metster's fault.
The Lords finding that the first report was not in the process, but some way amissing, which was the whole foundation of the process, they superseded to give answer, though Kincaid offered to supply it by his oath.
