Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. II.

Periculum rei Locatæ et rei Commodatæ.

John Binny, Postmaster,
v.
Monsieur Andrew Veaux, Dancingmaster

Date: 16 July 1679
Case No. No 12.

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The Lords found, where a man hires a horse, if it die, or fall sick or crooked by the way, (though he can prove that he rode modo debito, and no farther than the place agreed upon,) yet the rider must further prove the casus fortuitus quem nulla præcessit illius culpa, nor negligence, and the defect or latent disease it had before he hired it; and if he succumb in proving this, he must pay the price of the horse, or the party's damage and interest. The Chancellor's vote cast this decision, viz. that the rider should prove the accident, and his own diligence, which is perquam durum. This is a difficult probation to burden the rider with, since horses may have latent diseases before the hiring.

Fol. Dic. v. 4. p. 57. Fountainhall, v. 1. p. 51.