Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Mr Thomas Gordon v. John Straiton
Date: 15 December 1677
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John Straiton is pursued for a horse stolen out of the park, at the instance of Mr Thomas Gordon, the writer, as the owner.
Alleged,—He must be assoilyied, unless some culpa be qualified against him. Answered,—He was in culpa, because there was a slop made in the park-dike, out at which horses might be taken away easily.
Replied,—Non relevat to make him liable; because, 1mo, He intimated to them, after that slop was made, that their horses should thereafter be on the inputter's peril. See the title D. Nautæ, Caupones, Stabularii, and the lawyers there. 2do, That slop was not made by him, but by public authority, for carrying stones to the abbey, which he might not resist. 3tio, He did all quod in se erat, for he set a guard at that slop.
Duplied,—Intimation non relevat, since res non erat integra; and it was intempestiva. 2do, The supervenient authority is nothing to the inputters. 3tio, Offers to prove they came and took instruments there were none watching at the slop.
Triplied,—All he was obliged to do, was to set men there; he could not attend always himself. 2do, They might be near by, or at the back of the dike.
John Straiton seems to say much for his own liberation. See Dury, 28th November 1626, a Stabler against Moivat, and Bartolus and Mascardus, there cited. See 16th July 1679, Binny and De Veaux.
The Lords, upon a report, inclined to find John Straiton not liable, in respect of his placeat, unless they would qualify dolus or culpa on his part. And that thir denunciations are legal, see L. ultimam in principio, D. nautce, caupones, stabularii. See Nicolaus Mozzius de Contractibus, tit. Societas, p. 554; Masuerii Practica Forensis, titulo De Probationibus, p. 137, in calce. See Mr Alexander Birnie's case.
