Scottish Court of Session Decisions

Subject_1 PRIZE.

Captain Carswell
v.
Marshall

1751, Nov. 27.
Case No. No. 1a.

Click here to view a pdf copy of this documet : PDF Copy

The Rebels in 1745 took a horse from Marshall, which was taken from them by the Berwick Militia, and said to be then bought from them by Captain Grozet, and by him made the Company's bat-horse, for which it seems the King allows L.10. The Captain was killed at Callender, and Carswell got his Company, and got the horse for the Company's bat-horse, and if he had not got him, would it seems have been entitled from Grozet's executor's to L.10. Thereafter Marshall challenged the horse at Glasgow, and 5th January 1750, the Lords found that the property was not transferred either by the capture by the Rebels or retaking by the Militia or the army; and a proof was allowed of Marshall's property, and of what price Grozet paid for him, or what he cost Captain Carswell. The property was proved, and no proof what was the price paid by Grozet, only that he bought him, and that Carswell got him in place of L.10 sterling, for the Company's bat-horse. Shewalton found Carswell liable for L.12 as the value of the horse when arrested at Glaswow; found him not entitled to be repaid what he cost him; and found him liable in expenses; and on a reclaiming bill, the majority of the Court adhered. The President and Justice-Clerk differed from the interlocutor 1750, and thought a horse taken in Rebellion was a case different from one taken by thieves or robbers. I again agreed with that interlocutor, and many things taken by the Rebels had been justly recovered from third parties after the last Rebellion; nor did I think the Officers entitled to salvage, properly so called, that is to a reward, but I thought they should be kept indemnis as to all that it cost them, and consequently to any price paid, because thereby alone the subject was preserved; and I thought that would hold in things taken by thieves, robbers, or pirates; and 2dly, I thought there was too much difficulty in all the points to subject the defender to expenses. Against the interlocutor as to the L.10, were President, Justice-Clerk, Milton, and I; and against expenses were the same four, and Dun and Woodhall. Leven was not present, nor Haining.