Scottish Court of Session Decisions

Subject_1 MANDATE.

James Burnett of Monboddo, one of the Senators of the College of Justice,
v.
James Clark, Farrier in Edinburgh

Date: 10 December 1771
Case No. No 8.

A farrier found not liable for the price or value of a horse who died while under his charge, although he did not treat him precisely as directed.

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The pursuer having employed the defender to attend a horse that was diseased, gave him a positive injunction that he should give the horse no medicine of any kind but nitre. The defender accordingly gave the horse nitre; but, in order to take off the sharp taste of the medicine, and to make him swallow it more readily, mixed it up in a draught with a small quantity of treacle.

The horse appeared to be in a very bad state when the medicine was given him; and having died the next day, the pursuer brought an action against the defender for his price or value.

The pursuer rested his action upon the grounds, 1mo, That the horse had died in consequence of the defender's improper management; and, 2do, In respect that he had exceeded the fines mandati, the pursuer having ordered the defender to administer nothing but nitre, whereas he had given him some other draught along with it.

In support of the first ground of action, the pursuer referred to the following authorities: L. 9. § 5. D. Locat. Conduct. L. 8. § 1. D. ad Leg. Aquil. L. 7. § ult. L. 8. in princip. ad Leg. Aquil. Voet. lib. 9. tit. 2. § 23. Stat. 1477, c. 78. ‘Of shoeing of Horse in the quick be Smiths.’ In support of the second ground, that a mandatar was answerable for every deviation from the terms of his mandate, he referred to Lord Stair, b. 1. t. 12. § 9. Bankton, b. 1. t. 18. § 13. Erskine, b. 3. t. 3. § 37. 12th Dec. 1758, Countess of Glasgow contra Thermes, voce Periculum; 18th June 1730, Selwyne contra Arbuthnot, Ibidem.

The defender answered,

That the pursuer's doctrine, as to mandate, did not apply to the present question. He could not be considered as a mandatary receiving a commission tanquam quilibet, but as a person of skill employed and trusted in the way of his profession. A deviation from orders, no doubt, rendered an ordinary mandatary responsible; but, with regard to a person of professional skill, he was only liable where imperitia artis was not only apparent, but proved to have been the efficient and certain cause of the loss that had been sustained. Inst. § 7. de Leg. Aquil. L. 9. Pr. et § 1. D. ad Leg. Aquil.

There had been no imperitia or improper treatment in the present instance; the draught was innocent and salutary. The addition of treacle, instead of being a deviation, was even necessary, in order to fulfil the pursuer's directions as to the administering of nitre; and as the horse had been moribundus when the medicine was given, there was not even a presumption that it had been the cause of his death.

The Judges were of opinion, That the defender had not gone ultra fines mandati, but that the mode followed was necessary to fulfil the orders given. Neither did their Lordships think that the abstract principle of responsibility, in the event of a deviation from the mandate, would, in the present instance, have applied; it having been observed from the Bench, That where a person in a profession of skill, adopted measures that were even extra fines, he would not, provided these measures were innocent and proper, be liable for the consequences.

The Sheriff of Edinburgh had found the defender liable for a certain sum as the price of the horse; but the Court altered that judgment, assoilzied the defender, and found the pursuer liable in expenses.

Lord Ordinary, Coalston. For Lord Monboddo, J. Boswell, et alii. Clerk, Campbell. For Clark, J. Maclaurin, et alii. Fac. Col. No. 118. p. 347.