Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. III.

Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.

Anderson
v.
-

1583. July —.
Case No. No 18.

A person received money to be lodged with a merchant beyond seas. The money being lost by shipwreck, he was not liable for it.

Click here to view a pdf copy of this documet : PDF Copy

There was a burgess in Aberdeen, called Anderson, who pursued another burgess for the delivering to him of the sum of six score-crowns, the which he gave command to the defender, to receive from J. M. factor, and thereafter to carry the same to B. and to deliver them to one Peter M. there, to the effect, that they might be employed in the buying of wines. It was answered by the defender, That he fulfilled the command of the pursuer, in receiving of the crowns from the factor, and took them to B. and could not find the said Peter there, and therefore he brought the said crowns away with him, and did bestow his labour, trouble, and diligence upon them, as he did with his own, and in the meantime, the ship that he was into was striken into Portsmouth in England, by storm of weather, and there into the road in a stormy night the cables and the ship driven upon shore suffered naufragium, so that the crowns with the rest of the defender's gear, which was in a coffer, perished, et sic mandatarius ille non tenebatur prestare casum fortuitum, prout in L. 26. D. Mandati, verba textus in § 6. non omnia quæ impensurus non fuit, mondatori imputabit; veluti quod spoliatus sit a latronibus aut naufragio res amiserit; et in L. 13. C. Mandati. To this was answered, that the defender ought not to have transported the said crowns forth of B., because the pursuer offered him to prove, that there were sundry Scots merchants, who being in B. at that present time, offered to take the said crowns omni periculo, and to give so much advantage upon the frank, and pay the same to the pursuer; and so it appeared, that in so far as the defender refused the same non eam fidem et diligentiam adhibuit in negotio quam diligens paterfamilias adhibuisset, et in L. 3. D. Mandati, causa mandantis melior fieri potest, nunquam deterior, and so the defender in so far as he did not give forth the crowns to the utility and profit of the pursuer, was in lata culpa. To which it was answered, that the defender in no manner of way ought to have given forth the crowns to the said pursuer's profit, quia fuit ultra fines mandati, and the pursuer might have found fault with that, as well as with the other et de jure in L. Si procuratorem, § Dolo D. procurator tenetur tantum de lata culpa quando quis curat alienas res ita ut proprias, arg. L. 32. D. Depositi, ut in presente casu, the defender used the crowns and the pursuer's gear, in all respects as his own, and alike to the peril and danger, and so by this dealing, it was clear and manifest, quod non fuit in lata culpa, quia nulla fuit suspicio fraudis aut doli, quia æquiparantur fraus dolus et lata culpa. The Lords, after long reasoning, found by interlocutor, that the exception should be admitted, the defenders proving that the ship suffered nuafragium, and that his own gear that was therein perished.

Fol. Dic. v. 2. p. 57. Colvil, MS. p. 372.