Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. II.

Periculum rei Locatæ et rei Commodatæ.

-
v.
Mowat

Date: 28 November 1626
Case No. No 9.

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In an action for the price of a horse, pursued at the instance of a stabler in Edinburgh, against James Mowat writer, the Lords found that the defender was subject to pay the price of the horse hired by him, and not restored again; albeit he alleged, That he ought not to be found subject therein, in respect that he having hired his horse to a part agreed upon, he was not holden nor astricted to keep him, but the pursuer ought to have sent for his horse again, or to have sent any boy with him to have brought him back, which not being done, but the horse having strayed away, or being stolen by the defender's fault or knowledge, it cannot be imputed to him; which exception was repelled, for conductor equi, of the law; non tenetur ad estimationem, si equus per casum moriatur sine culpa sua, et quamvis de casu non teneatur, tamen de culpa tenetur etiam levissima, ut est in Bart. ad Leg. Si ut certo. §. Nunc videndum, et § Sed interdum D. Commodat. Et conductor rei mobilis retinendo ultra tempus, non videtur reconducere, imo tenetur fur.

Fol. Dic. v. 2. p. 57. Durie, p. 238.