[1696] Mor 10085
Subject_1 PERICULUM.
Subject_2 SECT. III. Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.
Date: M'Neil, Rowan, &c
v.
George Dawling
12 November 1696
Case No.No 21.
A mandatary trusting to another, does not in doing so without orders, comply exactly with his mandate, and must be liable for the consequences.
Click here to view a pdf copy of this documet : PDF Copy
In the concluded cause, M'Neil, Rowan, and other merchants in Glasgow, against George Dawling skipper in Greenock, for compt, reckoning, and payment of the value of a cargo of herrings they trusted him with to Stockholm in Sweden; his defence was, he consigned them to Alexander Pittillo, a factor there, and with their produce bought from him dales, iron, and tar; and after his ship was loaded, he breaking, and being debtor to the King of Sweden for public dues, the government there seized on his ship, and manu forti took away the goods as Pittillo's.—Answered, 1mo, You being not only skipper, but having a special factory and commission, you could not consign them to another factor; but the very nature of your trust and mandate obliged you to sell for ready money; at least, to have enquired whom you trusted, and exacted caution; and if you did not, it is on your own peril, and not your constituents; 2do, Pittillo's condition was at that time suspect, and he shortly after broke and so you was in mala fide.——The Lords, as to the first point, found a mandatarius trusting another did not exactly obey the terms of his mandate, but followed the faith of that other on his peril, and was liable for the event, tho’
there was neither dolus nor lata culpa chargeable on the mandatarius; but any negligence and omission, (not having exactly followed his mandate,) lay at his door, even as if an advocate should delegate another to manage for him, he must be answerable, because in such cases industria personæ is elected. And there was ground of suspicion against the factor; and it was not proved that he had trusted his own part of the cargo to him, as he had alleged; and there is no less diligence required in a mandatar's executing his commission than he uses to adhibit in his own affairs. Law impedes him not to substitute, but if he do, he must take his hazard of the event, and not throw it over on his constituents. But the Lords would not have required this exact diligence of him qua skipper, had he not also been supercargo, with a special commission and trust, because he had been oft there, and had the Swedish language.
The electronic version of the text was provided by the Scottish Council of Law Reporting