Scottish Court of Session Decisions

Subject_1 NAUTÆ, CAUPONES, STABULARII.

James Brouster, some time Merchant in Perth, now residenter in Edinburgh,
v.
William Lees, Merchant and Inn-keeper in Douglas

Date: 5 June 1707
Case No. No 7.

An inn-keeper, liable to a person who lodged in his house, for the value of a pair of breeches, and what was in them, stolen from the lodger before the next morning, and the lodger allowed to give his oath in litem thereupon, reserving to the Lords to modify.

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In the action at the instance of James Brouster against William Lees, the pursuer having proved that he was received and lodged in the defender's house in Douglas, upon the first day of February 1704 years, and that his breeches were stolen from him before the next morning, He claimed a certain sum from the defender as the value of the breeches, and what was in them; and that his oath in litem might be taken thereupon.

Alleged for the defender, That the pursuer's oath could not be allowed to prove in this case; because, albeit in law nautæ, caupones, &c. are liable for trunks, cloakbags, &c. imported to their houses in conspectu, and committed to their care, they cannot be liable for things not in conspectu, nor in their custody; as the pursuer's breeches, that were only in his own custody, and not in the defender's, more than his person was. And in the case of Thomas Hay, Sheriff, clerk of Aberdeen, against Williamson, the Lords found no process for gold that was seen the night before in Mr Hay's purse in his quarters, and found amissing the next morning, No 6. supra.

Answered for the pursuer, That he is in a very different case from Mr Hay, whose gold that was not in conspectu of the inn-keeper, was alleged to have been stolen out of his purse, and the purse left; for the pursuer's breeches, and all that was in them, being taken away per aversionem, his oath in litem ought to be received as a full probation in the matter.

The Lords found the defender liable for the value of the breeches, and the particulars therein; and allowed the pursuer to give his oath in litem thereupon, reserving to themselves to modify the same.

Fol. Dic. v. 2. p. 2. Forbes, p. 166. *** Fountainhall reports this case:

James Brouster, chapman, pursues William Lees inn-keeper in Douglas, on the edict nautæ caupones, that he, on a great fair or market-day at Douglas, in 1704, having lodged at his house all night, found his breeches stolen from him next morning; wherein he had not only sundry tickets, and other papers, but also money, and several parcels of goods.—Alleged, That he never acquainted the master of the house at his entry, but at his own hand crept into a garret, the town being then very throng; and so they cannot be answerable for his loss, if he had any. 2do, Whatever may be pretended, if he had brought in a valise, or cloakbag, and shown it to the landlord, yet he can never be liable for what fell not under sight now, what he had in his breeches was not in conspectu, so as any could be made accountable for it,—Answered, He offered positively to prove, that he was so far from intruding himself privately, that he openly supped with others in that house, and was conveyed and lighted to his bedchamber by the servants of that house, and paid his reckoning.——The Lords allowed a conjunct probation, as to the manner of his entry, and entertainment in the house. And the same coming to be advised, they found Brouster proved his supping with other company in the inn that night, and his being seen without his breeches next morning, till he borrowed a new pair; and that they heard him make a heavy complaint of his loss. And Lees the defender not having proven his allegeance; they allowed his oath to be taken as to what he had in his breeches, and the value of the same, that they might restrict and modify it, as they should see cause. Some remembered lately, that Mr James Williamson in Kinghorn was assoilzied from a pursuit against him, at the instance of Mr Hay, sheriff-clerk of Aberdeen, who had 50 guineas stolen out of his pocket there; but the Lords thought that case not alike, for there his breeches were not stolen, but only the purse of gold taken away. Here all was gone per aversionem; and therefore they allowed the pursuer his oath in litem; but he will not get a pretium affectionis, seeing there is no delinquency on the defender's part, but a quasi delictum only.——Brouster having deponded he had some bonds and tickets extending to L. 100 in his pockets, the Lords decerned Lees to pay the sum, on Brouster's assignidg him to the ground of these debts. After this it was discovered, that Brouster had got back his breeches and papers, and yet fraudulently concealed them, and raised this calumnious process.

Fountainhall, v. 2. p. 369.