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w
1
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* Pi
g i l l {I
11||
l l i
t II
I
4
■
■ m
■ ! |
■ f?. ifj I|! f i
but he is not
refponfible to
the finder for
the fubfift-
■ 1 § I j| | ence, unlefs Sra h fih it be furnifhed
■ by order of the
■ p r magiftrate;
■ I who, i f they
■ be fit for hire, f i l muft diredt
them to be
hired out for
that purpofe,,
■
K * i £1
1
I I
lli or, if unfit, to V be fold, and
■ I the price re
■ ! j tained for the
owner;
■ 1 l] |1||; 1 $
■
si iii i f
unlefs he
•think fit to
order them a
I 1
fubfiftence,
which is in
that cafe a
I f h •!;
II 111
H i
HB ■ fi1
■ ifl-
In
| Jill
j ] §.
B ; ; ! J 1 m
1 ij i?
H \ v
m il
T R O V E S . Book XL
oinable to fecure it, and moft laudable to leave it*. The argument
of our doCtors is that the animals in queftion are trove property, and
there is reafon to apprehend their perifhing, whence it is laudable to
fecure and advertife them, in order that the property may be pre-
ferved, in the fame manner as the fecuring of Grayed goats is laudable
according to all. If, moreover, the finder give fubfiftence to troves
of this defcription without authority from the magiftrate, it is a gratuitous
aft, becaufe of his not poffefling any authority i but if he give
fubfiftence by order of the magiftrate, it is a debt upon the owner, becaufe
the magiftrate is endowed with authority over the property of
an abfentee, for the purpofe of enabling him to a£t with kindnefs j “
to the abfentee; and the giving of. fubfiftence is a kindnefs on fome
occafions, as Ihall, be demonftrated eliewhere. I f the queftion re-
fpefting the fubfiftence of the troves be brought before the magiftrate,
he muft inquire into the particulars; and if the troves be
capable of hire, (fuch as horfes, camels, or oxen') he muft order them
to be hired out, and fubfifted from their hire, becaufe in this cafe the
animals continue the property 'of the owner without fubjeCting him
to any debt: (and a fimilar judgment muft be palled with refpeCt to
fugitive Haves:)— but if the troves be unfit for hire, (fuch as goats or
Jheep,) and it he apprehended that, i f the finder were to fubfift them,
the fubfiftence would equal their value, the magiftrate muft diredt
them to be fold, and the price to be kept, in fuch a manner that the
troves maybe virtually pieferved, in their value, becaufe the prefervation
of them in fubjlance is impracticable.— If, however, the magiftrate
deem it fit to give fubfiftence, he muft adjudge fubfiftence to be
given, making the fame a debt upon the owner of the animals,— becaufe
the magiftrate is appointed for the purpofe of exercifing huma-
* T h is is ilrange reafoning: it may perhaps have fome reference to predejlination;
i. e. as thofe animals feem d e s t in e d to perijh, it is impious to attempt to prevent this dejliny•
t B y the term kindnefs is here and elfewhere meant a due attention to the interefi o f the
party concerned.
nity
B o o k XL T R O V E S .
nity and kindnefs;: and the giving of fubfiftence is a kindnefs both
to the owner and to the finder-,— to the owner, becaufe his property
is. thus preferved to him in fubftance; and to the finder, becaufe the
fubfiftence he furnilhes is thus made a debt upon the owner. The
learned in the law, however, have faid that the magiftrate is to iflue
the order for fubfiftence only for the term of two or three days, in
hopes that the owner may appear; and that if the owner do not appear,
he muft then order the troves to be fold, becaufe to afford fubfiftence
to them for a continuance would be to eradicate the property,
whence there would be no kindnefs in affording them fubfiftence for
a long term (that is, for a term beyond three days.)— It is obferved, in
the Mabfoot, that the production of evidence is requifite,— that is,
the magiftrate is not to give an order for fubfifting the animal, except
where the finder produces evidence to prove that “ fuch an anl-
“ mal is a trove -fi and this is approved, becaufe it is poflible that he
may have obtained poffeflion of the animal by ufiurpation, and in a.
cafe of ufiurpation the magiftrate does not give an order for fubfiftence,
but direCts the thing ufurped to be reftored to the owner, except in a
cafe of depofit, which cannot be proved without evidence; the production
of evidence, therefore, is eflentially requifite, in order that
the aCtual ftate of the cafe may be afcertained.
Objection.— Evidence is not admiflible without an adverfary;.
and in the cafe in queftion there is no adverfary ;— how, therefore,
can evidence be admitted ?
Re p l y .— The evidence, in the prefent cafe, is not required for
the purpofe of a judicial decree, fo as to make the exiftence o f an ad-
veriary a neceflary condition.
— If the finder lay “ I have no evidence of the animal being
“ with me as a trove," ftill as it is apparent that it is a trove,'
the magiftrate muft fay “ fubfift this animal provided, your decla-
“ ration be true!” and then, if the finder’s declaration be true,
he will have a claim upon the owner for the, fubfiftence, but not
if he be an ufiurper. It is here neceflary to.remark that what is
advanced above, that “ the magiftrate muft adjudge fubfiftence to be
4 “ given,
271
debt upon the
ow n e r :
but fubfift-
ence muft not
be ordered for
more than a
fevo days',
nor unlefs thev
finder pro-
duceevidence
inproof of the
trove.
I t the finder
have no evidence,
the order
for fubfiftence
muft
be conditioned
upon
the veracity
o f his decla-
tiou.