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SCOTTISH_HoL_JURY_COURT

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(1749) 3 Paton 649

CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND.

No. 118

Gabriel Napier of Craig Annet, Sheriff-Depute of Stirling, Appellant

v.

George M'Farlane, Drover, Respondents

House of Lords, 14th April 1749.

Subject_Waif and Stray — Price of an Ox — Competency of Action before the Court of Session. —

APPENDIX.

[The Collection of Appeal Cases in the Advocate's Library, of which the Compiler has availed himself, is defective in some parts, and hence omissions will occur, which can only be supplied from other Collections. The most perfect Collection of Appeals, for the period it embraces, is one in the possession of Lord Murray, which his Lordship was pleased kindly to place at the Compiler's disposal.]

This was an action raised before the Court of Session by the respondent, for the sum of £8 Sterling, as the price of an ox belonging to him, and which had been taken possession of by the appellant as waif and stray, he being, as alleged, entitled as Sheriff-depute of the county, to claim all such property so found; and the respondent's ox having so strayed, was put into the Sheriff's own parks, and, after a certain time, killed and used for his own family.

The respondent's allegations in regard to the ox were, That having brought a great number of black cattle to Falkirk Tryst, with the view, if not sold, of taking them on to the English markets, “among other cattle brought to the market of Falkirk in 1744, there was one remarkable grey ox, which being of a size much larger than usual, and therefore improper to be mixed with the smaller country cattle, the respondent resolved to leave it at home, and to turn him to grass in his parks at Kilsyth. That this animal being young, of high spirits, and full of flesh, took a fancy to separate from his companions, and, terrified by the noise and clamour which generally prevail on these occasions, where such numbers of cattle are crowded together, became; a little unruly, and sallying forth, endeavoured to break in upon the next drove; but being checked by his keepers, who had a watchful eye over him, was immediately brought back to his proper station, there to remain until he should be sent back to the parks at Kilsyth. Mean-time

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he and his other servants went over to England with the remainder of his cattle.” The man who was left in charge to take home the ox to the Kilsyth parks had driven it part on the way home, but was obliged to give it to a neighbouring farmer of the respondent, to be delivered by him to the keeper of the Kilsyth parks, which he undertook to do. “It thus happened that the ox, a stranger to these grounds, and unacquainted with his new companions, strayed in upon a neighbouring farm, the property of the appellant, whereupon the appellant, as claiming right to waif and strayed goods, by virtue of his temporary grant of the Sheriffship of the said county, took the ox into his own custody, and put him to grass in his own parks, intending, as it afterwards appeared, to make use of him for winter provision for his family.”

To this action the appellant pleaded two special defences: 1st. That the cause was not competent in the Court of Session, by the showing of the libel itself, which charges the ox “or stott” libelled to be worth £8, which, though treble its true value, was still less than 200 merks Scots (the lowest sum that by law can be brought in the first instance in that Court); 2dly. That the defender conducted himself agreeably to the law and the duty of his office as Sheriff-depute in respect of the stott libelled.

The respondent further alleged and proved, that he had claimed delivery of the ox by written letter, and also by a message sent through his servant, before it was made use of by the appellant.

The Lord Ordinary repelled the dilatory defence to the competency of the action brought before him, and allowed a proof to the respondent of his libel, and the property of the stott, and all facts and circumstances in relation thereto; and allowed the appellant to prove, on his part, the several intimations made by him as to the stott at the church doors in the neighbourhood, and at the market cross of Stirling, “and of the appreciation of the said stott, and the extent of said appreciation.”

Nov. 3, 1748.

Dec. 1, 1748.

Dec. 9, 1748.

After the proof was closed, and various interlocutors were pronounced, the Court finally pronounced this interlocutor:

“Find the defender (appellant) liable in three guineas, as the value of the stott (ox) in question, and in the expense of the process, and ordain the pursuer to give in an account of the same against next day.”

Thereafter, and upon considering the account given in, the Court modified the expenses to £15 Sterling, and decerned therefor, and for the value of the stott, &c. And, upon reclaiming petition, the Court adhered.

Against these several interlocutors the present appeal was brought to the House of Lords.

Pleaded for the Appellant.—1. That the cause was not competent in the Court of Session. 2. That the appellant, by his conduct, has done nothing illegal or injurious to the respondent, or deserving of any censure or penalty. 3. The respondent's behaviour has been

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highly unjustifiable, vexatious, and oppressive, by neglecting to bring proof of the property when he ought to have brought it at first, and by wilfully disdaining to apply to the Sheriff for that end, as others in the like cases have done, in order to recover their strayed cattle, and also from his insisting upon prosecuting, after the appellant offered to make satisfaction for the value, if the stott really belonged to him.

Pleaded by the Respondent.—The respondent did enter his claim to the property of the ox in due time, which he notified to the appellant, praying redelivery, and offering payment of whatever sum might be demanded in name of grass mail and other expenses; and the evidence then given that the ox belonged to him was such as ought to have satisfied the appellant.

After hearing counsel, it was

Ordered and adjudged that the interlocutors be affirmed.

Counsel: For the Appellant, W. Grant, W. Murray.
For the Respondent, Alex. Lockhart, A. Forrester.

Note.—This case, from the peculiar nature of the dispute, and the trivial sum involved, produced a good deal of noise in Westminster Hall. It is mentioned in Blackstone's Commentaries, 8vo. Edit. vol. iii. p. 393.

1749