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Scottish Court of Session Decisions >>
George Lockhart of Carnwath, v Daniel Peck, and Other Tacksmen of the Coal of Saltcoats. [1725] Mor 2350 (22 June 1725)
URL: http://www.bailii.org/scot/cases/ScotCS/1725/Mor0602350-003.html Cite as:
[1725] Mor 2350
George Lockhart of Carnwath, v. Daniel Peck, and Other Tacksmen of the Coal of Saltcoats
Date: 22 June 1725 Case No. No 3.
In a process for restitution of a coalier girl, who had deserted her master's works, and gone to another coaliery, the Lords decerned for restitution; but in respect there was proof that she had been year and day in her new service before requisition, they assoilzied from the penalty, notwithstanding she had been detained after requisition.
If delivery of the coalier within 24 hours, in terms of the act of Parliament happened to be impracticable; the penalty would not have been forfeited, if the delivery had been made without delay.
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Carnwath insisted in a process against the defenders, for restoring back to him Kate Thomson his coal-bearer, concluding, That they also ought to be decerned in payment to him of the penalty contained in act 11th, Parl. 18th of James VI. because they had detained her after requisition.
A mutual proof was granted, upon advising of which, the Lords, 8th June 1725, ‘In regard that the pursuer's proof was pregnant, that the servant was in his service within year and day of the requisition; and that the defenders’ proof was also pregnant, that she continued year and day in their service before the requisition, assoilzied from the penalty; but found that the property remained with the pursuer; and therefore ordained the defenders to deliver the servant to Carnwath's coal-grieve at Dryden, betwixt and the last day of Jane inclusive, under the penalty of L. 100 Scots, by and attour performance.
The defenders, in a reclaiming bill, prayed, That the Lords would find their delivering back the servant at the coal-heugh of Saltcoats sufficiently exonered them, and that they were not obliged to transport her to Dryden, because they had no authority to compel her to return, since she was found to be Carnwath's property; and they likewise contended, That since the act of Parliament required the delivery back of the servant in 24 hours after requisition, it necessarily imported that the delivery was to be made at the possessor's coal-heugh; because, if the coaliery to which the deserter belonged should be at the distance of 200 miles, the thing would be impracticable.
The coal-bearer likewise gave in a petition, praying, That the Lords would decree her her liberty, in respect that the case appeared doubtful as to the possession and requisition, and because of some cruel usage she had met with in Carnwath's service; and in support of her plea the following laws were quoted, l. 122. compared with l. 125. ff. De regulis juris; and § 2. Inst. De his qui sui vel alieni juris sunt.
The Lords had no regard to Thomson's petition, because the severity she had been used with did not appear to have been greater than what she deserved, on account of a former desertion. And to the tacksman's petition it was answered, That the interlocutor of the Lords sufficiently authorised them to transport her to the pursuer's coal-heugh, and would warrant the several Magistrates, through those jurisdictions they were to pass, to grant. their concurrence: That the argument from the act of Parliament was of no moment; because, at the date of that act all the coalieries in Scotland were so near one another, that 24 hours might answer the end; and though now it might happen, that a coaliery was at a greater distance, yet if the restorer was in cursu, no doubt he would be excused from the penalty.
The pursuer concluded with an observation, That the question was of considerable import to all the coal-masters in Scotland; for of late they had sustained considerable losses by the insolence of their servants, which, he alleged, was occasioned by the encouragement and countenance they met with at the coal-works of Saltcoats, upon their desertion from other works.
The Lords adhered to their interlocutor the 8th of June 1725.
Act. Alex. Lockhart.Alt. And. Maodowal.Clerk, Dalrymple.
Fol. Dic. v. 3. p. 135. Edgar, p. 182.
