Scottish Court of Session Decisions

The Lord Ordinary ( Jerviswoode) found for the defenders in the following interlocutor:—“The Lord Ordinary having heard counsel, and made avizandum, and considered the debate and whole process, Finds that, in the month of September 1869, the defender agreed with the pursuer to purchase from the latter the potatoes in two fields on the farm of Greendykes, then occupied by the pursuer, at the price of £24 per Scotch acre, with a farther provision to the effect that, in a certain contingency, he would give more for the potatoes : Finds it admitted, on the part of the defender, that he uplifted and removed the foresaid potatoes from the said farm, and that he has since disposed of the same: Finds that the defender has not made payment to the pursuer of the foresaid stated price of the potatoes, and maintains, in the present process, that in respect of the provisions of the statutes set forth in the 7th statement of facts, and referred to in the second plea in law on his behalf, the contract under which he purchased the potatoes cannot be enforced by the pursuer: Finds, as matter of law, that the said contract having been entered into in the terms aforesaid, is struck at by the provisions of the foresaid statutes, and cannot be enforced as such by the pursuer in this action; but finds that the defender was not entitled to retain possession of the said potatoes otherwise than subject to liability to account to the pursuer for the just value thereof as at the date or dates when he removed the same from the fields then in the possession of the pursuer, and in which they were grown; and with reference to the preceding findings, Appoints the cause to be enrolled, so that parties may be heard as to the course of further procedure in the cause; reserving meanwhile the matter of expenses.

“ Note.—The terms of the statutes founded on by the defender, and the application of their provisions to such a matter as that with which the Lord Ordinary is here called upon to deal, are strongly illustrated by the case of Alexander v. M'Gregor, June 24, 1845, 7 D. 915; and, indeed, the enactments themselves are so framed as to leave, in the Lord Ordinary's opinion, no room for doubt as to their stringent character; but it is not less clear that, while, as the Lord Ordinary thinks, the original contract cannot be here enforced, the defender is bound to pay a just value for the potatoes as at the date or dates when he removed them from the ground. That, in the Lord Ordinary's view, is a matter for proof, and it does not appear to him that he is called upon now to specify any special mode of ascertaining such value otherwise than by a proof.”

The defenders reclaimed.

Marshall and Strachan for them.

Watson and Johnstone in answer.

The Court adhered.

This was not a case like those where by statute forfeiture was imposed as a penalty—where even though the one party suffered a severe loss, the other party was not allowed to gain, for that which was forfeited did not remain with him, but enured to the Queen. Here the statute struck at both parties. It declared the contract null, not because it was a turpis causa, but because it was contrary to public policy. It was true enough that in turpi causa the maxim held true melior est conditio possidentis quam prohibentis; but this was not a pact so illicit that the Court could not look at it. What the Court could not do was, it could not enforce the contract. But to refrain from taking any notice of it, so as to let the defenders retain the potatoes without paying for them, would amount to a gross injustice. The Court could, therefore, entertain the alternative plea of the pursuer, and decern

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