Scottish Court of Session Decisions

Subject_1 DEPOSITUM.

Douglas
v.
Bishop of Caithness

1665. July.
Case No. No 2.

A depositary found entitled to bring proof that the deposit had been lost without his fault.

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The Bishop of Caithness gives a ticket to the deceast Colonel Richard Douglas, bearing, that he granted the receipt of L. 40 Sterling from him in custody, which he obliged himself to deliver upon demand; which ticket being assigned to Mr Richard Douglas his nephew, he pursues for payment. It was alleged, That, in January 1648, the money being depositate in his hand for preservation non tenetur reddere, if it hath perished without the fault and fraud of the defender; but so it is, that, in anno 1648, he living in Durham, his house was then plundered upon the account of the engagement, and the money also; whereupon he is content to make faith. It was answered, That however the ticket be conceived, as to the granting the receipt in custody, yet truly it was borrowed, and the defender became personally obliged to repay it; and it is known, that the army, for the engagement, marched not Durham way, but the west way in England; and it is unreasonable that the defender should offer to prove his defence by his own oath.

The Lords, before answer, ordained the Bishop to give his oath upon the way of consigning the money, or depositing it in his hands; and whether that individual money was plundered at that time.

Gilmour, No 158. p. 112.