BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Trotter v Buchanan. [1688] Mor 10080 (28 February 1688)
URL: http://www.bailii.org/scot/cases/ScotCS/1688/Mor2410080-016.html Cite as:
[1688] Mor 10080
Click here to view a pdf copy of this documet : PDF Copy
One Trotter having hired a horse from Buchanan in Cockenzie, there is a decreet obtained against him for the horse, or its price; which was suspended on this reason, that having ridden to Leith with him, he was stolen out of a stable there. Answered, This was not sufficient, seeing he might pursue the stabler. Replied, The casus fortuitus must defend both, there being neither dolus nor culpa qualified against them—The Lords, on Boyne's report, found the reason of suspension relevant to assoilzie him, that the suspender did deliver the horse to the keeper of a common stable, to be kept in his stable; and that the horse was stolen out of that stable: And also sustain the charger's answer, that the suspender, either scripto vel juramento, promised to satisfy the charger for the horse. But it may be considered how far the edict nautæ, caupones, stabularii, may reach at least the stabler; seeing Patrick Steel was made liable for the Master of Forbes's cloak stolen in his house, though it was not proved that his servants did it. No 2. p. 9233.
Fol. Dic. v. 2. p. 57. Fountainhall, v. 1. p. 501.*** Harcarse reports this case.
One being pursued for the price of a horse hired from the Pans to Leith, where the conductor delivered him to a stabler, and he was stolen away, without the stables, by some who broke the stable;
The Lords assoilzied the defender; because, conductor non tenetur præstare asus fortuitos.
