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.

William Cuming Merchant in Edinburgh
v.
John and James Marshalls Merchants in Auchtermuchty

Date: 21 December 1752
Case No. No 30.

A merchant alleging he had sent bank notes in a letter by post which miscarried his account book with the evidence of his clerks and his oath in supplement, were held sufficient to make his correspondents liable for the loss.

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William Cuming, a merchant of a fair character, sued John and James Marshalls for payment of an account, containing, among other articles, one in these words:

“To bank-notes sent per post L. 100.”

He produced a letter from the defenders, dated 28th October 1751, ordering him to send them by the post L.100 in notes; and he alleged he had accordingly, the next day, upon receiving their order, wrote them an answer; and with his own hands inclosed in it the L. 100, and sent it by his son to the post-office.

Marshalls acknowledged the commission; but as the answers and notes had never come to their hands, pleaded, They had no reason to believe the money had ever been sent, and therefore they could not be liable.

A proof being allowed before answer, the pursuer was not able to bring any direct evidence, either of his having enclosed the notes, or sent the letter to the post-office. But he proved by his clerks, that, in letters which he dictated to them, he was in use to inclose bank-notes to his correspondents, and, in particular to these defenders: That he generally sealed these letters himself, and sent them to the post-office by his son, who attended his shop in the quality of a clerk: That, on the very day the letter covering the notes was said to be sent, a copy of it had been entered in his copy-book of letters, and the sum entered into his cash-book; and that, in the same evening, his cash was balanced, and the sum found exactly to answer with the cash in hand. It appeared likewise in the proof, that the post-seal had been broke off the Falkland bag, in which this letter should have been carried. But this last circumstance did not seem to have any weight in the determination of the cause; for, upon advising the proof, the Court was of opinion, that the pursuer's books, together with his oath in supplement, if required, was sufficient evidence that the commission was obeyed. An example was given of notifying the dishonour of a bill of exchange, where a copy of a letter to the drawer or indorser, ingrossed in the copy-book of letters, is held sufficient proof, without necessity of bringing parole evidence that the letter was wrote and delivered at the post-house.

The defenders upon hearing the opinion of the Court, did not insist for the pursuer's oath in supplement.

“The Lords found that Mr Cuming had executed the commission given him by Marshalls, faithfully and conform to their orders; and therefore found the defenders liable to the pursuer in the account claimed, and also in expences of process, and for extracting the decreet.”

Act. Jo. Grant Alt. Ro. Craigie. Clerk, Justice. Fac. Col. No 50. p. 74.

*** Lord Karnes's report of this case is voce Proof.