The proprietor of inclosures having put up a placard, that he was not to undertake the hazard of the cattle in them, was found not liable.
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Whitehead of Park pursues John Straiton for restitution of a horse which he delivered to his servant, to be put in the park of Holyroodhouse to the grass, and which now cannot be found. The defender alleged, That he was liable for no loss or hazard, because at that time, and long before, there was a placard fixed upon the port of the park, that he would be answerable for no hazard or loss of any horse put in there, by stealing or otherwise, which was commonly known at, and long before that time. It was answered, That this action being founded upon the common ground of law, Nautæ, caupones, stabularii, ut quæ receperint restituant, the same cannot be taken away but by paction; and the putting up of a placard is noways sufficient, nor was it ever shown to the pursuer. The defender answered, That the pursuer having only delivered his horse to his servant to be put in the park, without any express communing or conditions, it behoved to be understood on such terms as were usual with others, which were the terms expressed in the placard.
Which the Lords found relevant, unless there had been special agreement, in which case, they found the defender, or his servant, should have shown what was in the placard.
Fol. Dic. v. 2. p. 56. Stair, v. 1. p. 487.*** Dirleton reports this case:
1667. November 14.—Robert Whitehead of Park pursed John Straiton tacksman of the park of Holyroodhouse, for the price of a horse put in the said park, to be pastured for four shillings per night, which after search cannot be found.
It was alleged, That by a placard affixed upon the gate of the park, it was intimated, that the keeper of the park would not be answerable for any horses put therein, although they should be stolen, or break their neck, or any other mischief on hazard should overtake them. It was replied, That by the law nautæ coupones, &c. the keeper ex conducto is liable, unless it were alleged, that it had been expressly agreed that he should not be liable; or at the least, that it was known to the pursuer, that such a placard was affixed when he put in his horse.
The Lords, before answer, ordained the Reporter to enquire, and hear the parties upon the terms of the agreement, when the horse was put in, whether it was told or known to the pursuer, that the keeper would not be answerable.
