Scottish Court of Session Decisions

Lord Justice-Clerk.—In the course of the argument a number of interesting legal questions have been discussed; but in my opinion the specialties of the case make it unnecessary for the Court to express an opinion upon these questions. The facts are these:—The pursuer asked the defender to take a parcel containing a bank-book and cheques to the bank at Lockerbie, and to bring back the proceeds in cash. This was a commission which the defender had been in the habit of executing for the pursuer, and on previous occasions the commission had been carried out satisfactorily. On the present occasion the defender took the parcel to the bank and left it; and in accordance with his custom he went back later to get the return package, containing the bank-book, and a sum of money in gold and silver. He got an envelope containing the book and the cash, put it into his inner jacket pocket, buttoned up his jacket, and put on his overcoat. After leaving the bank he was in Lockerbie for two hours or so, but he was unable to give any detailed statement of what he did during that time. He saw several friends, and was in a public-house or hotel once or twice, where he had some liquid refreshment; but the pursuer does not allege that the defender was the worse of drink. When the defender got back to Dalton he found to his surprise that the package was missing. Within a few minutes after his arrival he told the pursuer that he had not received any packet from the bank, and that the bank would probably be sending it by post. That was the evidence which the pursuer gave as to the conversation, and I do not find that the defender seriously differs from that account in cross-examination. Moreover it practically agrees with the defender's statement on record. The pursuer next day made inquiries at the bank, and was informed that the defender had received the packet on the previous day. When the defender was informed of this he then stated that the packet must either have been lost or stolen. For my part I cannot accept the evidence which the defender gave, or understand how he could, within a few hours of receiving the package from the bank, take up the position, and persist in it, that he never got the package, and that the bank would be sending it on by post the following morning.

With regard to the English authorities which have been quoted, I have difficulty in accepting them as being in conformity with the law of Scotland, and I do not agree that the same rule of law as applies to gratuitous obligations under English law can be held as applying in this case. According to Bell's Principles, there is an obligation on the depositary to “keep the thing with reasonable care,” and the editor of the last edition of that work states that reasonable care in the case of a gratituitous depositary means “such care as a man of common prudence generally exercises about his own property of like description.” Now, the packet having gone astray while it was in the defender's custody, the onus, in my opinion, rests on him to explain how this happened or at least to show that he exercised the necessary reasonable care. Here the explanation given did not, in my opinion, sufficiently discharge the defender of responsibility for the loss of the packet. The consequences would be most unfortunate if we were to hold that it did. On the defender's own statements, and on the other evidence in the case, there is enough to shew that the defender, in executing his commission, did not exercise the care which a prudent man would have taken with regard to a valuable packet of this kind. Accordingly I think that we ought to pronounce an interlocutor in the following terms. [His Lordship read the interlocutor printed infra.] It is right that I should add that there is nothing to warrant any imputation of dishonesty on the part of the defender.

Lord Dundas, Lord Salvesen and Lord Guthrie concurred.