Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Row v. Coupar
Date: 12 January 1671
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This Row being in Galloway, and hearing that this defender was going for Edinburgh, he desires him to take in with him a horse to Peter Mell, and deliver it to him, which he accordingly did, but the horse within very few days after died. Coupar being pursued for the price of the horse, in regard it died by his default, he having jaded and spoiled it by the way; whereas, conform to the trust reposed in him, he should have delivered it as sound as when he received it. His defence was, he being nudus negotiorum gestor, he could not be liable for any accidents that befel the horse, after he was out of his possession, and consequently not for his death, that being casus fortuitus which in nullo contractu præstatur; and that he had the internal sickness on him, whereof after he died, before he was delivered to him, he proved by a testificate of a ferrier who saw the horse before that time.
