A number of cattle being stolen at one time, he in whose custody the hides of part of them were found, not bringing proof how he came by them, found liable for the value of the whole cattle stolen and for damages and expenses.
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Duncan Stewart had eight cattle stolen, or carried off from his grounds; and search being made for them, two of the hides of these cattle were found in the custody of John Macfarlane. Stewart brought an action against Macfarlane before the Bailie of Monteith, concluding for payment of the value of the whole eight cattle, and for damages and expenses.
The Bailie allowed the pursuer to prove that the two hides found in the custody of the defender, were two of the hides of the cattle which had been carried off from the pursuer's grounds; and on advising the proof, “found that the pursuer had proved the said hides to be two of the hides of his said cattle; and therefore found the defender liable for the value of the whole eight cattle, and for damages and expenses”.
The defender suspended, and (denying always that the pursuer had proved the property of the hides), insisted, That he could not be liable for the value of all the eight cattle, supposing the hides of two of them had been found in his custody; for there was no proof offered of his being accessory to the carrying away of the cattle; the only thing alleged against him was, that two of the hides were found in his custody; and supposing he had reset two, that could make him no further liable than for these he had reset.
Answered for the charger, That it appeared from the proof, that all the eight cattle were carried off at once; and as the suspender has brought no proof of the manner how he came to the possession of these two cows, it must be presumed he was accesory to the theft of the whole, and therefore must be liable for the value of the whole, as every person who is art and part of the crime is liable in solidum; and indeed it would be extremely hard upon proprietors, if thieves were only to be liable for the particular goods found in their possession, when the proprietor has clearly proved that he had more goods stolen from him at the same time that those goods so found were stolen.
“The Lords found the letters orderly proceeded.”
Reporter, Lord Drummore.For the Charger, H. Home & Bruce.For the Suspender, Lockhart.Clerk, Gibson.
Fol. Dic, v. 4. p. 132. Fac. Col. No 41. p. 62.
