A proof allowed that a person had, by a public calamity, lost money he had in charge.
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Fiddes pursues Jack for payment of a bond of 500 merks, which Jack acknowledged to have received in custody from Fiddes to be kept as his own. Jack alleged, That he had but the custody, and did conform to his obligation; he sent the money to Dundee in anno 1650, where he lost both it and much more of his own at the plunder of Dundee. The pursuer answered, No way granting that his money was lost at Dundee, yet it ought not to liberate the defender; because he oft-times required and desired the defender to pay him his money before the plundering of Dundee, and seeing he did not then give it it was lost upon the defender's hazard. The defender answered, That any requisition was made, was but verbal, without instrument, and that it was made to the defender, being in Edinburgh, after this money, and the defender's whole means, was sent to Dundee for safety, and that at the time of any such desire, he shows the pursuer so, and bid him send for it to Dundee when he pleased and he should have it.
The Lords, before answer, having ordained, witnesses to be examined hinc inde, and having advised the same, found that the pursuer did desire his money, and at that same time the defender told him it was at Dundee, and said he might have it when he pleased to send for it; and witnesses also proved that he was at Dundee, and was in esteem as a man of good means then, and that he was there at the plunder of Dundee, and ever since was in a poor miserable condition; and some of them deponed that he had a considerable sum of money, far above this in question, there.
The question was, whether this probation was sufficient to assoilzie; albeit none of the witnesses did particularly depone, that they knew the pursuer's money to have been at Dundee, and lost there.
The Lords found that the probation was sufficient, the pursuer giving his oath in supplement, that it was there, and lost there; for they considered, that at the time of the pursuer's requisition, the witnesses proved, the defender declared it was there; and that ex natura rei, it was hard to prove particularly, this money being a fungible, to have been lost there, but that it behoved to be presumed so, seeing the man lost his whole means there, and hath been poor ever since.
