A person, altho' not proprietor, yet being creditor speciei, was found obliged to bear the accidental loss of the subject.
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By contract of marriage betwixt Captain Boswell in Kirkaldy and Beatrix Lingclater, he having got several shares of ships and other considerable moveables by her, obliged himself to add to what he had got with her, the sum of of his own proper means and estate, and to take it to him and her in liferent and conjunct-fee; and she pursuing on the contract for having a sum filled up in the blank, it being by simplicity and ignorance omitted in her husband's lifetime, qui non debet lucrari ex sua culpa; alleged, That the very principal contract produced by herself in modum tituli is not only blank, but is scored; which clearly evinces that she and her friends have passed from it; especially seeing she is largely provided without it, a posterior clause bearing, that in case of no bairns (which case has existed) the half of her tocher is to return to herself, so she is at no great loss. Answered, If they have imposed on her weakness by scoring it, yet that can never deprive her of the arbitrium boni viri, which comes in place of the parties contracters, who certainly meant some provision by that clause; for verba non debent esse otiosa, sed aliquid operari; and therefore the Lords may insert such a sum as was suitable to the husband's circumstances and estate; for to think I would subscribe a contract without some equal compensation on my husband's part, were to declare me a fool with a witness. Replied, The clause being blank and scored, must of necessity presuppose to have been done of consent, unless she can prove it done viis et modis indirectly; and it is without the Lords power to make up a new contract here, more than in the case where parties have forgot to insert a clause at whose instance execution shall pass, the Lords, though applied to, never ventured to supply it. Some thought that a small and moderate sum might be decerned, the Lords being sensible that it was a mere oversight and neglect on her friends part. Yet this being a stretch to supply so great a defect, they found the blank in the contract, not being filled up in Captain Boswell's lifetime, and the same being now produced by the defender herself, and found scored, his heir was not liable in payment of any liferent upon account of the said blank clause now scored.
Then she insisted for the value and price of her share in Balfour's ship, which she had in her contract assigned to her husband, but with this quality, That in case of no children she should have the fee of the half, and liferent of the whole; and therefore craved her husband's heir might be decerned in a sum for her part of that ship, seeing she had her election to take herself either to the goods disponed, or their price. Alleged, She had exhausted and declared her option already, and so could not alter now, nor recur to his prejudice; for she had taken herself to the ship itself, in so far as, after her husband's death she had subscribed the ship's compt-book, and took in her proportion of the balance of the profits, and signed a commission to Robert Todd to navigate the ship as skipper; and that in his first voyage the ship was accidentally burnt at Harwich, and so being lost casu fortuito it must fall upon her; seeing res unaquæque perit suo domino. Answered, Her contract fully divested her of the property of the ship, so that her husband could have sold it, and his executrix could have done the same, so it must perish to them and not to her; and the deeds condescended on noways prove her election of the ship rather than the price; for per cam non stetit but you might have sold it, in which case I would have got the half of the price, and the liferent of the other; and my necessary deeds of administration did not hinder you, and your delaying till the ship perished must prejudge yourself and not me. The Lords found, though she was not proprietor, yet being creditrix speciei, and that individual species perishing, the loss must fall upon her; and that neither her husband's heir nor executor was bound to make it up; but there being some remains of the wreck preserved after the burning, she might claim a share in these. If the ship had not perished, there had been no place for this debate; but the general rule of law in these cases is ejus est periculum cujus est dominium: Qui habet commodum æquum est eum etiam pati incommoda rem ipsam sequentia.
Fol. Dic. v. 2. p. 56. Fountainhall, v. 2. p. 644.
*** Forbes's report of this case is No 11. p. 5017. voce General Assignation.
