Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
The Town of Dundee v. The Town of Arbroath
1666,
1667, and
1668.
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1666. December 20. The bailies of Aberbrothock having borrowed some cannons from their neighbours in Dundee, for defence of their town against the English, in anno 1651, for which they gave bond either to deliver the same unhurt, or else to pay 500 merks as their price; and the hail maritime towns of Angus being subdued, thir cannons were taken away vi majore. Whereon the merchants of Dundee having charged the Arbroathmen either to deliver or to pay the 500 merks, they suspend on this reason, that by the bond it is clear to be contractus commodati; by the nature of which contract, commodatarius non tenetur prestare casus fortuitos, nisi culpa precedat casum; and the cannons being taken away without any fault of theirs they cannot be liable to the sum charged for.
Answer,—Here pacto susceperant in se casum fortuitum, and so must be liable for the same, though by the nature of commodatum they would not be liable; for here, in case of failyie of redelivery, they oblige them to pay 500 merks as the price.
The Lords found the reason of suspension relevant to assoilyie them, unless the chargers would condescend on some neglect on their part to deliver the cannon; and found them not liable to pay the price contained in the bond, which was rather adjected nomine pænæ.
Act. Balfour and M'Keinzie.Alt. Lockhart and Dinmuire.
Advocates' MS. folio 57.
1668. November 1. Thereafter this cause came to be debated in P. D. upon the clause contained in the bond, that they should deliver the guns without any hurt or scaith, which comprehends fortuitous cases præter naturam commodati.
2do, Alleged,—This was not commodatum simplex et regulare, but æstimatum, where per L. 3. D. commodati omne damnum est præstandum.
The Lords found that clause in the bond, “without hurt or scaith,” did not comprehend fortuitous cases; and that it was not commodatum æstimatum properly, but a liquidation of the value in case of scaith, for in commodato æstimato pretium est in traditione.
Advocates' MS. folio 57.
1667. December.—In the forementioned case betwixt some honest men in Dundee and Arbroath, the question ran, whether the bond granted by Arbroath was commodatum or mutuum.
The Lords found it was conceived in the terms of a commodatum; and the said vis major being casus fortuitus, Arbroath was not bound præstare istum casum, nisi culpa precesserit casum. They also found they were bound, ex natura commodati, in exactissimam diligentiam for preservation of the guns. And in suit of this question, there did arise another, viz. if the diligence required behoved to be antecedent to the fortuitous case or subsequent, the obligation to do diligence for recovery thereof still remaining after that accident. Thus Arbroath were forced to condescend on some acts of diligence; and the Lords before answer ordained Dundee to condescend on particular acts of neglect: and then to consider, at the advising of the cause, if the diligence done was relevant to assoilyie from restitution.
Then on Nov. 1668, when thir diligences came to be advised, the cause was again debated on the clause of the bond, and the nature of commodatum æstimatum: after which, the Lords found as is before set down.
