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James Findlay of Balchrystie v James Monro. [1698] Mor 1767 (29 November 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor0501767-049.html Cite as:
[1698] Mor 1767
Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. IX.
With what Modifications Bona Fide Consumption Saves from Repetition.
James Findlay of Balchrystie v. James Monro
Date: 29 November 1698 Case No. No 49.
A present sent by mistake to one person instead of another, was not considered to be bona fide consumed, being sine causa.
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Whitelaw reported James Findlay of Balchristie against James Monro, writer in Edinburgh. Mr Findlay having sent an ox to be delivered to John Macfarlane, writer to the signet; and the man employed, forgetting his name, and asking for a north-country writer, he was directed to James Monro's house by some neighbours, and he not being in town, his wife received it, and disposed on it, not knowing but it was sent by her husband, or some friend in a gift; but, When he came home, he declared he knew not whence it came; however, they salted and applied it to the use of his family; and being now pursued for L. 48 Scots, as the price of it, he alleges, it was bona fide perceptum et consumptum; if he had sold it, he would have been liable as locupletior factus; but he did not, except the skin, for which he got L. 3 Scots; and he had little benefit, seeing a little Highland cow would have served his small family, et lautius vixit, looking on it as God's gift, or some friend's who had forgot to write with it.—Answered, It is a law of nature, jus suum cuique tribuere, and reason suggests quod omnes scire debent quod suum non est, hoc ad alios modis omnibus pertinere, et error non facit jus; and whether you was in dolo or culpa, yea or no. I may vindicate my property wherever I find it; and there was not so much as a title of donation, or any other to sustain his bona fides; et nemo debet locupletari cum alterius jactura; and the law is clear in this as to parallel cases, l. 23, et 32. D. de reb. credit, et. l. 6. D. de condict. ob turp. causam, et sine causa, and the Decisiones Gennenses, cap. 171. determine, that ille, cui spectant merces, licet directæ ad alium, potest agere contra tertium, cui per errorem traditæ sunt.—The Lords repelled the defence, and found him liable, but modified the price of the ox to L. 3 Sterling.
Fol. Dic. v. 1. p. 107. Fountainhall, v. 2. p. 20.
