Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Farquharson of Ballatrach, and other Parishioners of Glentanner, v. Alexander Gillanders
Date: 10 February 1698
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Arniston reported Farquharson of Ballatrach, and other Parishioners of Glentanner, against Alexander Gillanders, for rebuilding the church of Glentanner, and paying the damage, as he who occasioned the burning of the same, in so far as he would have his father, a common ordinary person, to be buried within that church; and in December 1696, in the evening, gathered eight or ten to remove the desks, and dig his grave; some of whom brought a lighted coal or peat alongst with them for lighting the candles, and left the said fired coal on some of the timber-seats, whereby, after their removal, the whole church was burnt down to ashes.
Alleged,—Incendium is indeed presumed to arise ex culpa inhabitantium in dwelling houses; but here there can be no fault qualified against Gillanders, unless they prove he was the person who brought in the peat, and carelessly laid it on a timber-desk, and forgot to bring it away with him, or to lay it on the earthen floor. And the church has a sexton or beadle to whom the care of the church is particularly intrusted; and he being present, they cannot answer for his neglect. And Gillanders cannot be reached unless his accession were proven, nam prcesumptio indeterminatœ personœ non sufficit ad condemnationem; l. 11, D. de Pertc. et Commod. Rei Vendit. l. 6, sect. ult. Nautœ, Caupon. Stabular. l. 6, sect. ult. D. Furti Adversus Nautas; l. unic. C. ut Nullus de Vicariis; Novell. 134, cap. 4.
Answered,—Though there is not here a dolus, or lata culpa, which would expose him to criminal punishment, yet there may be such a negligence as may subject him to damages quoad civilem ejfectum, though he was in acto licito, if he did not adhibit all that diligence which a prudent paterfamilias would have done in re sua: as appears by the 75th Act, 1426, which speaks of misgovernance; so it cannot be called a mere casus fortuitus qui omni culpa vacat.
The Lords allowed a conjunct probation of all the circumstances of the fact from which either guilt or innocence may be inferred.
See Dr Sibbald's pursuit against The Lady Rosyth, marked supra, 13th February 1685, on the same account.
