LOVELL v HOWEY and COMPANY (Court of Session)

Lovell brought the present action, before the sheriff of Edinburgh, against Howey and Company, the proprietors of the Daily Post-waggon between Edinburgh and Glasgow, for the value of a trunk that contained wearing apparel, which was put into their waggon in passing along the road, a few miles from Edinburgh, for the purpose of being conveyed to Glasgow, and was next day found in a field adjoining the road, a little way farther on, broken open, and rifled of its contents.

This evidence was confirmed by two other of the defenders' servants, of whom one was twelve years in their service, and the other sixteen in the situation of clerk. It was, in particular, stated by the latter witness, ‘That the way-bills of goods from Glasgow to Edinburgh come through his hands; and he never saw any charge therein for goods, other than those coming direct from Glasgow: That the waggoner's only duty is to drive the waggon safely to the end of his own stage, and to give it up to the next driver, within the given time.’

The evidence of a fourth witness for the defenders was, that his master, though resident in the parish of Kirkliston, and not far from the Glasgow road, had been in the use, for many years, of sending articles to the defenders' office in Edinburgh, to be forwarded by their waggon to Glasgow; on the other hand, that parcels from Glasgow to his master were not delivered as the waggon passed, but were carried forward to Edinburgh, to remain till sent for, the defenders positively refusing either to receive or deliver any parcel on the road.

The defenders further proposed the driver of the waggon on the occasion in question, as a witness; but, on being examined in initialibus , this person having admitted that he considered himself as alone liable for the trunk to the owner, the pursuer objected to his admissibility; and his examination in causa never took place.

The sheriff, on considering this evidence, ‘Found it proved that the trunk was put, with the waggoner's consent, into the waggon; found the defenders liable in the value of the articles in the said trunk; and found that the value of the said articles might be instructed by the pursuer's oath in litem .’ The pursuer having made oath accordingly, the sheriff decerned for £14, in terms thereof.