Scottish Court of Session Decisions

James Todd, farmer, at Ballynaskergh, County Down, Ireland, presented a petition in the Sheriff Court of Fife and Kinross, in which he prayed the Court to ordain John Armour, farmer near Leslie, to deliver to him a dark chestnut horse belonging to him, and failing such delivery to pay the pursuer the sum of £60 sterling.

The ground of action was stated in the pursuer's condescendence as follows:—The pursuer was on the 3d of August 1881 in the lawful possession of a dark chestnut horse, which was then in a field on his farm of Ballynaskergh. On the morning of the 4th it was stolen. The pursuer learned afterwards that the said horse had come into the possession of a person named David Black, who sold it to the defender for the sum of £23 at Falkirk. The pursuer called on the defender to deliver up the horse to him, but this request was refused.

In his statement of facts the defender made the following averments in reply:—On the 10th August 1881 he was introduced at Falkirk Tryst to David Black, farmer, Portadown, Ireland, who said he had a horse for sale. This horse he bought for £23. The horse was a sooty black animal with four white feet, a white spot on its forehead of a peculiar shape, like a leaf with two tails, a white strip on the near nostril of about two-and-a-half inches in length, and part of his mane grey, which is very uncommon. On or about 3d September Black was arrested

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and charged with purchasing the said horse knowing it to have been stolen; and on the 12th September the pursuer and his servant came to the defender's farm and endeavoured to take it away on the ground that it had been stolen from the pursuer. David Black was at the Newry Quarter Sessions, on the 3d November, put forward and indicted that “he on the 4th August one horse of the goods and chattels of James Todd (the pursuer) feloniously did steal;” and on a second count he was charged with receiving the same knowing it to have been stolen. The jury returned a verdict of not guilty, and Black was discharged. In article 7 the pursuer averred that Black bought the horse at Armagh Fair (a public market) on the 4th August from a very respectable-looking man, and the usual forms required in Ireland for a sale in public market were carried out. In article 9 the defender averred that by the law of Ireland the buyer of property in public market, or in market overt, is under no obligation to give up his purchase to the real owner unless in the single case of theft, where the thief shall be prosecuted by the owners to conviction. The averment in this statement was denied by the pursuer, who counter-averred that by the English statutes 2 R. and M. c. 7, and 31 Eliz. c. 12, and also by the Irish statutes 4 Anne c. 11, and 6 Anne c. 12, horses are an exception to the rule as to purchases in market overt unless certain formalities are gone through.

The pursuer pleaded:—“(1) The said horse being the property of the said James Todd, and it being now illegally in the possession of defender, he should be ordained to deliver the said horse to the pursuer within such period as the Court may appoint. (2) Or, alternatively, in the event of the defender failing to deliver the said horse, as aforesaid, the pursuer is entitled to decree in terms of the alternative prayer of the petition. (3) The averments in article 7 of defender's statement of fact being irrelevant, they cannot be admitted to probation. (4) The alleged rule of Irish law not applying to a transaction which took place in Scotland, and being subject to the exception already referred to, the pursuer is entitled to decree and the expenses as craved. (5) The defender being a domiciled Scotsman, this case ought to be judged by Scots law. (6) The defender's first and fourth pleas being irrelevant, in respect that he does not aver that the formalities required by the statutes before mentioned were complied with, they ought to be dismissed without being submitted to probation. (7) The said horse not having been brought by Black in bona fide in market overt, the pursuer is entitled to decree as craved.”

The defender pleaded:—“(1) The horse in defender's possession having been purchased by Black in a public market in Ireland, and no conviction of the alleged thief having taken place, the action is groundless, and should be dismissed. (2) The horse in defender's possession not having been stolen from the pursuer, the action is groundless, and should be dismissed. (3) The horse in defender's possession never having been the property of the pursuer, he has no ground to claim restitution. (4) Black, after the purchase in Armagh Fair, having been in lawful possession of the horse (even though stolen), the sale to the defender in Scotland was by the law of Scotland sufficient to transfer the property to him. (5) The question as to the effect of the sale in Armagh fair is regulated by Irish law, and a case should be stated for the opinion of a Superior Court in Ireland.”

The Sheriff-Substitute ( Gillespie) allowed the parties a proof of their averments. He added this note:—It lies on the pursuer to show that the horse he claims was his, and that it was stolen from him. This he does not dispute, but he maintains that if he establishes these points he is entitled to decree. The defender maintains that another question remains behind. He avers that Black, from whom he purchased the horse, bought it in market overt in Ireland, and that the forms were observed which are required by Irish law to give a good title to the purchaser, and he maintains that the horse having been validly transferred to Black according to the law of the place where it was transferred, the transfer must receive effect everywhere. The pursuer does not admit that either the facts of the Irish law (which is matter of fact in a Scotch court) are as stated by the defender, but in judging of the relevancy of the defence it must be assumed that the defender will be able to instruct his averments.

“The pursuer maintains that the defence of market overt is not relevant, and that the present action being a rei vindicatio, must be decided by the lex fori, and that as the law of Scotland knows nothing of the protection afforded by some other systems to a purchaser of stolen goods in open market, it is immaterial whether Black had a good title to the horse in Ireland by the law of that country. In other words, the pursuer contends that, assuming that Black had a good title to-the horse in Ireland, it became bad when he came to Scotland. It appears from the passage cited by the pursuer's agent that his contention is supported by the high authority of Savigny (Guthrie's Translation, 186), but so far as the Sheriff-Substitute has been able to learn, Savigny's views have not been accepted by other jurists. A different rule has been laid down in England, viz., that a transfer binding by the law of the place where it is made is in general binding everywhere. A leading case is Cammell v. Sewell, 1860, 5 Thurlston and Norman, 728. Mr Justice Crompton, in delivering the judgment of the majority of the Court—the Exchequer Chamber—which it may be observed included Chief-Justice Cockburn—puts the very case of stolen property sold in market overt in England, and afterwards coming into a foreign country the law of which does not recognise the privilege of market overt in the case of stolen goods, and expresses the opinion that the courts of that foreign country would hold the property as bound by the transfer in England. It humbly appears to the Sheriff-Substitute that even if Ireland is to be regarded as strictly a foreign country, the principle laid down in the case of Cammell v. Sewell is more in accordance with expediency and international comity than the rule contended for by the pursuer. But the courts of one part of the United Kingdom are more especially bound to give effect to the law of another part operating within its proper sphere. The Sheriff-Substitute therefore thinks that the defender should have an opportunity of proving the alleged purchase by Black of the horse in Ireland. After the facts in regard to that purchase have been ascertained, the application of the law

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of Ireland to these facts must, if necessary, be ascertained in the proper way.”

A proof was taken, the result of which appears from the judgments given below, and thereafter the Sheriff-Substitute having heard parties' procurators, and considered the cause, found in fact—“(1) That the horse mentioned in the prayer of the petition belonged to the pursuer, and was stolen from his field at Ballynaskergh, County Down, Ireland, on the night of the 3d or the morning of the 4th August last; (2) that at Falkirk Tryst, on the 10th of same month, the said horse was sold by the said witness David Black to the defender; (3) that the defender purchased the horse in good faith and for a fair price; (4) that it is not proved that Black purchased the horse in open market in Armagh Fair on 4th August, or that the horse was sold in open market in Ireland at any time after it was stolen from the pursuer; (5) further that it is not averred by the defender that by the law of Scotland anything short of a sale in open market will give a good title to the purchaser of a stolen horse as against the true owner; in law that the right which the defender took by his purchase at Falkirk must be determined by the law of Scotland, which gives no protection to the purchaser of a stolen horse even in open market against a claim for restitution by the true owner. Therefore repelled the defences, and ordained the defender to deliver up the horse mentioned in the prayer of the petition to the pursuer or his agent within fourteen days from this date, with certification.”

The defender appealed, and argued—It must be admitted that if the theft had taken place in Scotland the facts proved were such as would entitle the pursuer to have the horse stolen restored to him, because of the vitium reale introduced by our law as an exception to the general rule which protects a bona fide purchaser for full value. But (1) the theft took place in Ireland, by the law of which country the buyer of property in “market overt” is under no obligation to give up his purchase to the real owner, unless in the single case of theft when the thief shall have been prosecuted within six months to conviction by the owner—(24 and 25 Vict. c. 96, sec. 100). In the present case the evidence went clearly to prove that the horse was actually bought by David Black in “market overt” at Armagh; and further, the indictment which charged him with having stolen it knowing that it belonged to the pursuer failed. But (2), even admitting that the vitium reale was not so purged by the sale in “market overt,” it was, being a foreign vitium, completely removed by the sale bona fide in open market in Scotland for full value.

The pursuer replied—Unless the defender could prove a bona fide sale in “market overt,” with the necessary formalities, the pursuer might claim restitution of the thing stolen, the conviction of the thief not being necessary—Benjamin on Sale, 2d edit. p. 10. Now, in point of fact, it had not been proved that Black had bought the horse in Ireland bona fide, but even supposing the purchase was made in bona fide, it was not such a purchase in “market overt” as would entitle the defender to protection, and this for two reasons—(a) In the laws of England and Ireland “market overt” was distinguished as market de jure from market de facto. The onus lay on the defender of proving the former on the authority of Lees v. Bayes and Robinson, May 26, 1856, 18 Scott's Reps. C.B. 599; Benjamin v. Andrews, June 22, 1858, 5 Scott's Reps. C.B. (N.S.) 299; and Gauly v. Ledwidge, February 18, 1876, 10 Com. Law Rep., Irish, 33. He had only proved the market de facto. (b) Market overt, in the case of horses, was in Ireland regulated by 4 Anne, c. 11, and rendered perpetual by 6 Anne, c. 12. These statutes required, inter alia, that the parties to the sale of a horse should appear before a toll-keeper or bookkeeper at the market, and have all the particulars of the transaction entered in a record kept by him. Absolute nullity of the sale attended the non-compliance with these regulations. There was an onus resting with the defender to prove compliance with these regulations; they could never be matter of presumption— vide Benjamin on Sale, 11 and 12; and Moran v. Pitt, February 5, 1873, 42 L.J., Q.B. 47, where the validity of the corresponding English statutes—2 and 3 Philip and Mary, c. 7, and 31 Elizabeth, c. 12—was recognised and enforced, and the question as to onus given effect to. Therefore the pursuer was entitled to rely on the vitium reale as giving him right to restitution, and when once this attached to moveable property by the law of one country it could not be removed by the mere transference of the property to another, particularly where the law of the latter recognised a similar vitium.

At this stage of the case the Court indicated that the validity of the Irish statutes referred to could only be ascertained in the manner prescribed by the Statute 22 and 23 Vict. c. 63 (Foreign Law Ascertainment Act), by a case stated for the opinion of the Irish Court as to the law applicable there to the facts of the case; and further that the pursuer, while setting forth in his pleadings that the statutes in question prescribed certain formalities, neither stated what these formalities were nor averred non-compliance with them. Accordingly, the pursuer's counsel moved for a case to ascertain the law of Ireland as suggested, but declined the suggestion of the Court to amend his record on payment of expenses.

At advising—