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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Purves v. Brock [1867] ScotLR 4_174 (9 July 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0174.html Cite as: [1867] SLR 4_174, [1867] ScotLR 4_174 |
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Page: 174↓
A petitioner in a Sheriff-Court craved a warrant upon the respondent to deliver up to him a sheep which the petitioner alleged he had bought from a third party for £3, 5s., and which had been delivered to the respondent by mistake. Held that an advocation of the process was competent, and that the statement of the petition as to the price he had paid for the sheep was not conclusive as to the value of the cause.
James Purves, farmer, Lochend, presented a petition in the Sheriff-Court of Caithness against George Brock, farmer, West Greenland, stating that at a sale of farm stocking at the farm of Stainland, on 18th May 1865, he purchased a tup marked in a specified way, for £3, 5s.; that when he sent next day for the tup, the wrong tup was given him; that on finding this, and that the tup which he had bought was in the possession of the respondent, he sent for it to the respondent, but the respondent refused to give it up. He accordingly asked The Sheriff to ordain the respondent to deliver up the tup to him. It appeared that the respondent had purchased another tup at the price of £3. 3s. He got the petitioner's tup sent him by mistake. The Sheriff-Substitute held that the petitioner was entitled to vindicate his property in the way sought, and granted warrant against the respondent as craved. The Sheriff (on appeal) reversed, and dismissed the petition, holding, that the petitioner never had any right of property in the tup, and that if there was any mistake in the matter, the action should have been laid against the seller and not against the respondent.
Purves advocated.
Solicitor-General ( Millar), and M'Lennan, for the respondent, took an objection to the competency of the advocation, on the ground that the value of the cause was under £25.
Black for advocator.
The Court unanimously repelled the objection.
The petition in which the proceedings commenced prayed for a delivery of one tup which had been taken possession of by the respondent in the circumstances therein stated. The petitioner set forth the circumstances in which he acquired the tup—viz., by purchase at the sale of farm stock. Now, if nothing but that had been stated, it would plainly have been impossible for the Court to have ascertained the value of the cause, because the tup might have been of various values, for it is a matter of notoriety and everyday experience that while a tup may sell for the mere value of a fat sheep, others sell at the very highest prices; and therefore it is impossible to sustain the objection to the competency if the petition had been in that position. But then the petitioner, in stating the circumstances under which he acquied the tup, also mentions the price which he paid for it. He says he purchased it at the price of £3, 5s.; and that statement has produced the only difficulty, such as it is, which we have experienced. My opinion is, that that statement does not ascertain the value of the cause. The price that is paid for an article sought to be recovered cannot exclusively fix the value of it. It may be of much greater value. It may be of much greater value to the possessor, because its value to him may be enhanced by circumstance which do not affect others, and therefore the mention of the price paid for the tup does not prove that the cause is under the value of £25. It is incumbent on a party objecting that a cause is under that value, to prove that it is so, and that it is so from the pleadings themselves. I don't go the length of saying that the value of a cause is, under all circumstances, to be measured by the conclusions of the action, or the prayer of the petition, for I think it is to be gathered from the whole of the record as well. I cannot say that here the party staring the objection to the competency has discharged the onus of proving that the value of the cause is below £24.
The other judges concurred.
The case was then heard on the merits, when the Court unanimously recalled the judgment of the Sheriff, and reverted to that of the Sheriff-Substitute. The Lord President in giving judgment,
Page: 175↓
Agent for Advocator— D. Forsyth, S.S.C.
Agents for Respondent— Morton, Whitehead, & Greig, W.S.
