Scottish Court of Session Decisions

Subject_1 PROPERTY.

Earl of Hopetoun
v.
Mr Williamson

1753, June 19.
Case No. No. 11.

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Mr Horn obtained leave from the Earl of Hopeton, and wrought a quarry in his grounds, while the Earl was working another, and Mr Horn wanting a rolling-stone, sent to the several quarries, desiring the workmen, if they found a proper block, to acquaint him, and he would gratify them. A block was found, in the quarry wrought for Hope-toun. Mr Horn was acquainted of it, and sent his overseer there, who, with the assistance of the Earl of Hopetoun's quarriers, raised the block, and Mr Horn gratified the workmen. Afterwards finding that the block could spare so much, he cut off from it a stab, which he dressed and put up in his house, leaving the rest of the block at the quarry. Mr Horn died, and Mr Williamson bought the estate, and Thomas Herriot bought from Anderson servant to Mr Horn the stones he had quarried, but had not used or carried away; and Herriot, (who was the overseer of Hopetoun's quarries) shewed him the block quarried for Mr Horn, saying, if he had use for it he might take it, but the Earl said he had enough of those, and had no use for it. Mr Williamson wanted also a rolling stone, and being told that Herriot claimed right to that block, sent his servant, who bought it from Herriot for 5s., then sent and rounded the ends little, and carried it from the quarry to Mr Dalrymple of Stair's ground, at which Herriot assisted, and there he employed masons three days to form it into a roller, and fix gudgeons, and sent to carry it to his house of Foxhall (alias Todshaugh.) The Earl met it on the road, stopped it, and ordered the servants to leave it there on the high-way, which they did, and he forthwith made a present of it to his brother, Mr Charles Hope, who ordered Herriot to send it to Craigiehall on the Monday after, that being on Friday; and Williamson getting notice of it, went out on Saturday, and carried it to Foxhall. The Earl immediately raised a process of spuilzie before the Sheriff, which Mr Williamson advocated; and we having given an act before answer, the substance of the proof is as above, which we advised this day; and before advising, the Earl passed from any pecuniary consequences of any judgment we might give as to the property of the stone. Some were of opinion that the stone dug out of the quarry for Mr Horn's use, of which he actually cut off a part, and he having had quarrying leave in general from the Earl, without limitation to any place, the property was in him, and either transferred to Williamson, who bought his estate, or to Herriot by Anderson. Others, (particularly Justice-Clerk and Kilkerran) thought the property was the Earl's till the stone was carried away, and that it was unlawful for the quarriers, to whom the Earl paid day's wages, to quarry for Mr Horn, and that that could not transfer the property, and that the stone is yet the Earl's property, and ought to be replaced where the Earl stopped it. Others again thought it needless to determine the property of the block, since Mr Williamson, though he bought it from Herriot, had not paid the price, and owed it to somebody; but thought that he was a bona fide purchaser, and that having formed the block into a rolling-stone, whereof the workmanship was of more value than the block, that gave him the property as much as if he had cut it into a statue, and that therefore the rolling-stone was his, but that he is liable to the Earl for the value of the block;—and the Court gave their judgment this day in these terms. There were two questions, first as to the property of the roller as it now is. And of the opinion of the interlocutor were Minto, Drummore, Strichen, Elchies, Murkle. Con. were Kilkerran, Kames, Justice-Clerk, Leven. Shewalton did not vote. But Minto in the chair, was for the interlocutor. On the second question some did not vote.