Scottish Court of Session Decisions

This was an advocation from the Sheriff-court of Dundee. The pursuer was the trustee on the sequestrated estate of the late George Galbraith, residing at Muirdrum; and the defender was John Ogilvie, farmer, Pitlivie; and the question was as to the sum which the defender was bound to pay to the pursuer for the grazing of 259 wethers in a grass park rented by the said George Galbraith, and by him let to the defender. The conclusions of the action were as follows:—

“Therefore the defender ought to bo decerned to pay to the pursuer, as trustee aforesaid, the sum of £35, 12s. 6d., or such other sum as may be ascertained in the course of the process to follow hereon to be the value of a grazing in a park or parks at Panmure, occupied by the said George Galbraith, and let by him to the defender for 300 wethers for the period of one month, beginning on or about the 18th day of May last, which grazing was let to the defender, and used and possessed by him without the rent being specified, or, if specified, without any proper record of it having been preserved, with interest on the said sum from the 18th day of June last, when the same was due, at the rate of five per centum per annum, till payment, with expenses.

The pursuer maintained that there had been no bargain as to the rate, and that 6d. per head per week was a reasonable charge. The defender, on the other hand, alleged a bargain, to the effect that the rate was not to exceed 3d. per head per week.

The Sheriff-substitute ( Guthrie Smith), after a proof, found for the defender, holding the bargain alleged proved. He added the following note:—

“ Note.—The bankrupt George Galbraith having absconded, the pursuer, who is the trustee on his sequestrated estate, has been obliged to come into Court without being able to say whether there was any or what bargain made with the defender as to the pasturing of these sheep. The summons concludes for the value of the grazing possessed by the defender, ‘without the rent being specified, or, if specified, without any record of it having been preserved.’ But the record of it has been preserved in the defender's memory, and the only question is, Whether he is to be believed? It appears to the Sheriff-substitute that he has not been contradicted in any material particular. The statement by Mr John Galbraith, the bankrupt's father, that Mr Ogilvie, the defender, once told him that he was to give his son nearly as much for the park as his whole six months' rent, is not confirmed, and at best can only be taken to have been some loose observation by the defender as to the excellent bargain which the bankrupt had made with the landlord. It may be unfortunate for the

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pursuer that he has been unable to adduce the bankrupt, but it is not to be presumed that he would have contradicted the defender even if his evidence had been available.

The pursuer also argued, that as the defender admits he stipulated for the pasture of 300 sheep, he must pay rent for 300. But this is plainly untenable. In speaking of flocks and herds, a definite is often put for an indefinite, and besides, the complaint is now too late. He should have challenged the defender for the deficiency when the sheep were put into the field, or might have got other sheep to eat up the grass.

The expenses to which the defender has been found entitled, must suffer some modification. He claimed the value of one sheep, which he says was abstracted from his flock, and a diseased one left in its place. But he has been unable to prove that this was done with the privity of the bankrupt, or was in any way attributable to his fault.”

The Sheriff ( Maitland Heriot) altered and pronounced the following interlocutor and note:—

“The Sheriff having considered the appeal for the pursuer, against the interlocutor of 16th January last, along with the relative reclaiming petition and answers, and having also considered the record, proof, and whole process: Sustains the said appeal; recalls the interlocutor appealed against: Finds, that, from the 18th day of May till the 16th day of June 1865, 259 sheep were pastured in a field at Panmure possessed by the bankrupt George Galbraith: Finds that it is not proved that the same were so pastured at the rate of either 2d. or 3d. per head per week, as alleged by the defender: Finds that, in the circumstances, the defender must pay the fair value of the pasturage, according to the rule quantum valeat: Finds that, in the circumstances, 5d. per head per week is a fair and reasonable sum for the defender to pay for the same: Finds that the sum due to the pursuer, as trustee on the sequestrated estate of the said bankrupt, for the period of four weeks and one day, is £22, 7s. 1d. sterling: Finds that the defender, having consigned with the clerk of court the sum of £10, 19s. sterling on the 18th April 1866, there remains a balance due to the pursuer, as trustee aforesaid, of £11, 8s. 1d. sterling, for which decerns, with interest at the rate of five per cent. from the 16th day of June 1865: Ordains the clerk of court to pay over the consigned money to the pursuer, as trustee aforesaid: Finds the pursuer entitled to expenses; allows on account thereof to be given in, and remits the same to the auditors of court, or either of them, to tax and report, and decerns.

Fred. L. Maitland Heriot.”

“ Note.—It is proved and admitted that 259 sheep were pastured. The defender alleges that the agreement between him and the bankrupt was that payment was to be made at the rate of not more than 3d. a-head per week. This may be so, but unfortunately for the defender it is not legally proved, and the only way of fixing the value, in such circumstances, is quantum valeat. Looking to the evidence of this point, the Sheriff considers 5d. ahead per week a reasonable sum.

The pursuer wished to be allowed to charge for 300 sheep, on the ground that the bankrupt had agreed to pasture 300 sheep, although only 259 were sent; but how does he propose to prove the bargain as to 300? By the evidence of the defender himself, whose evidence he discards as to the rate? If his evidence be insufficient as to the rate, it is equally insufficient as to the number. Accordingly, the Sheriff has allowed the pursuer to charge only for the sheep actually pastured.

The defender claims deduction for one sheep not delivered. This, in the circumstances, cannot be allowed. He did not take over delivery in a regular way from the park keeper, but he broke open the gate, and took delivery at his own hands. He has himself to blame if a sheep was amissing or lost by him.”

The defender advocated.