Scottish Court of Session Decisions

Subject_1 HYPOTHEC.
Subject_2 SECT. II.

Extent of hypothec upon stocking.

Archibald Brown, Butcher in Edinburgh,
v.
Sir John Sinclair of Stevenson

1724. November 19.& December 1.
Case No. No 10.

The landlord has no hypothec on cattle put into his tenant's park to graze.

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Sir John, in the year 1720, set a grass-park to one Plummer, who falling in arrear of rent, Sir John was about to poind some black cattle which he found pasturing in the park; to prevent which, Plummer gave Sir John 25 of them, at the rate of L. 50 Sterling, for which he got a receipt to account of his rent.

The cattle belonged to Archibald Brown, who had put them to grazing for that season in Plummer's parks. About three months after Sir John had carried them to his own Parks, Brown came and demanded them; but Sir John had, before that time, sold off 12 of them; upon which Brown pursued Sir John for delivery of the 13 that were extant, and for the price or value of the 12 that had been sold.

The defences insisted on were, 1mo as to the 13, That Sir John had bought them bona fide; for they being in Plummer's possession, the property of them was presumed to be his, Stair, l. 1. tit. 9. § 17. 2do et separatim, Sir John was entitled to detain the cattle in virtue of his right of hypothec for the rent of the park still owing, Hay against Elliot, March 29. 1639, No 26. p. 6219. 3tio, As to the 12 which were sold bona fide by Sir John, there could ly no action against him for them, according to Lord Stair, B. 1. T. 7. § 11.

Answered to the first, That as the property was not conveyed to Plummer, he could not transfer it to Sir John, and therefore Brown, the proprietor, could vindicate his cattle. To the second, That in prædio rustico, the fruits of the ground, such as corn, &c. were only subject to the master's hypothec; and it would be absurd to plead, that beasts which are put in for pasture to grass-parks near Edinburgh, or any populous place, should be liable to be be carried off by the master for his rent, since a landlord might at that rate set his grass to the greatest bankrupt without any danger. Is was answered for the third, That Sir John being possest of the price that came in place of the cattle sold or consumed, ought to make it forthcoming, in the same way as he could have been obliged to deliver the cattle, in case they had been extant.

The Lords found Sir John liable for the 13 oxen found in his parks by Brown at the time of the citation, according to the price they were sold by Plummer to Sir John, unless Brown offered to prove a greater value at the time, and allowed Brown to prove the property.

December 1. 1734. The Lords found Sir John not liable for the value of the 12 cattle which were disposed on when Deacon Brown claimed them.

Act. Adam Watt. Alt. Mich. Menzies. Reporter, Lord Polton. Clerk, Murray. Fol. Dic. v. 3. p. 293. Edgar, p. 123.