The fault of a servant found not chargeable on the master although goods in his custody, belonging to another, are lost by means of the servant.
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Duncan Campbell drover, upon the 16th December 1745, sold and delivered 58 cows then going in the inclosure of Kirsyth, whereof he was tacksman, to William Barry of Balshannan and got bill for the price payble at Candlemas thereafter; and the cows were allowed to remain in the inclosures for some short time till Barry should dispose of them.
Barry being charged upon this bill at the instance of Hugh Cambell indorsee in trust for said Duncan, suspended on this ground. That Patrick M'Doual, who had the charge of the inclosures, as servant to Duncan Campbell, and under whose care and keeping the said cattle were, had informed a party of the rebels of them conducted them to the ground, and assisted them in carrying off 26 cows which then remained undisposed of; that the charger was answerable for said trespass of his servant, and that the suspender ought to have allowance of the value of the 26 cows out of the sum in the bill.
This reason of suspension “the Lords repelled, and found the letters orderly proceeded.”
They were of opinion, that the charger would not have been answerable for the fault of his servant, though he had knocked the cattle in the head; the cattle were allowed to remain as a favour to the buyer, and the dolus of the servant was casus fortuitus as to the master.
Fol. Dic. v. 4. p. 57. Kilkerran, (Periculum.) No 3. p. 377.*** D. Falconer reports this case:
Duncan Campbell, tacksman of the parks of Kilsyth, sold, December 1745, 58 cows to William Barry of Balshannan, upon his bill for the price, allowing them to continue in the parks, which they did, till the beginning of January, when 26 of them were carried away by the rebels, conducted by Patrick Macdouall servant to the tacksman.
Hugh Campbell writer in Edinburgh, indorsee to the bill, charged thereon, and it was suspended, for that the cattle being in the drawer's custody, were taken away by the fault of his servant, for whom he was liable.
Answered; The cattle being allowed to continue gratuitously in his parks for the buyer's conveniency, he was not liable for custody nor to make up that theft of his servant, more than if he had taken cattle out of any other park in the neighbourhood.
The Lord Ordinary, 6th June 1747, “Found that Patrick Macdouall was at the time attending the parks at Kilsyth, as servant to Duncan Campbell, and was accessory and assisting in carrying off the cows, and found Duncan Campbell liable for his servant.”
On bill and answers,
The Lords found the seller not liable. See Reparation.
Act. H. Home.Clerk, Gibson.
D. Falconer. v. 1. No 277. p. 372.
