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One Trotter having hired a horse from Buchanan in Cockenzie, there is a decreet obtained against him for the horse, or its price; which was suspended on this reason, that having ridden to Leith with him, he was stolen out of a stable there. Answered, This was not sufficient, seeing he might pursue the stabler. Replied, The casus fortuitus must defend both, there being neither dolus nor culpa qualified against them—The Lords, on Boyne's report, found the reason of suspension relevant to assoilzie him, that the suspender did deliver the horse to the keeper of a common stable, to be kept in his stable; and that the horse was stolen out of that stable: And also sustain the charger's answer, that the suspender, either scripto vel juramento, promised to satisfy the charger for the horse. But it may be considered how far the edict nautæ, caupones, stabularii, may reach at least the stabler; seeing Patrick Steel was made liable for the Master of Forbes's cloak stolen in his house, though it was not proved that his servants did it. No 2. p. 9233.
Fol. Dic. v. 2. p. 57. Fountainhall, v. 1. p. 501.*** Harcarse reports this case.
One being pursued for the price of a horse hired from the Pans to Leith, where the conductor delivered him to a stabler, and he was stolen away, without the stables, by some who broke the stable;
The Lords assoilzied the defender; because, conductor non tenetur præstare asus fortuitos.
