Scottish Court of Session Decisions

Lord Justice-Clerk (Alness).—Though this case involves but a small sum of money, it raises questions of importance and difficulty, and, to aid us in its decision, we have had the advantage of an able and elaborate argument from the Bar. The action relates to the death of a horse, which the pursuer, a farmer, entrusted for some hours, in accordance with an existing arrangement, to the care of the defender, who is the lessee of a stable. The horse was delivered by the pursuer to the defender in a sound condition, and was restored to the pursuer in such a state that, on the advice of a veterinary surgeon, he was obliged to destroy it. The pursuer sues the defender for the value of the animal, amounting, with certain dues, to £69, 0s. 6d. The parties are agreed that, if liability is established, that is the amount for which decree should pass. The Sheriff-substitute decided the case in favour of the defender. The Sheriff on appeal reversed that judgment, and gave decree for the sum sued for. It is unnecessary that I should recapitulate the precise facts which were held proved, because the learned Judges and the parties to the action are agreed that the first fifteen findings in fact of the Sheriff-substitute correctly set them forth.

The first question which we have to decide is whether a stabler falls within the Prætor's Edict “Nautæ, caupones, stabularii.” The Edict is in these terms:—“Nautæ, caupones, stabularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo.” Its necessity arose from the opportunities for collusion between persons falling within the categories alluded to and their servants, guests, or others—opportunities which, in the view then taken, justified the imposition of a high standard of care upon them. No doubt the liability imposed is a stringent one, and accordingly the Edict must be strictly construed. The defender maintained that, while the Edict unquestionably covered the case of an innkeeper who afforded accommodation to a guest and also to his horse, it did not apply to the case of a stabler who merely accommodated a horse. For that distinction there appears to be no warrant in the commentators upon Roman Law, whose works were cited to us, and with a detailed reference to which I think it unnecessary to trouble your Lordships. The dictionaries to which we were referred yield the same result. Curiously enough the question does not appear to have been expressly decided in any case which has hitherto come before the Scottish Courts. But, after carefully considering the arguments adduced and surveying the authorities cited, I own that I am unable to find in our law any warrant for the suggested discrimination. I am of opinion that stablers as such as well as innkeepers, according to the law of Scotland, fall within the ambit of the Edict. The views of our institutional writers are, I think, clearly to this effect. I refer in particular to the following passages:—Bankton, I. xvii. 1 and 2, p. 379; Stair, (More's ed.) I. ix. 5, p. 76, I. xiii. 2 and 3, pp. 122–3; Erskine's Institutes, III. i. 28; Bell's Commentaries, (7th ed.) pp. 498, 499; Bell's Principles, (10th ed.) sec. 236; Erskine's Principles, III. i. 11, (21st ed.) p. 303; cf. also Bell's Dictionary, “Innkeeper,” (7th ed.) p. 534. I am unable on a survey of these passages to adopt the view urged on us by the defender that our custom has not received the Edict to the effect of including within its ambit stabularii, or that it applies only to travellers. Bankton, for example, in the passage cited supra, says: “The edict was principally intended for the security of the necessaries that passengers and travellers have along with them for their journey or passage: but it likewise concerns … all manner of things which innkeepers, stablers, or masters of ships receive in the exercise of their respective callings or occupations.” I will only add that the principle upon which the Edict was applied to innkeepers appears to me to apply with equal force to stablers.

As regards case law in Scotland, Hay v. Wordsworth suggests, if indeed it does not assume, that stablers are included within the Edict. The defender referred to three cases in which he says that the Edict was not pleaded, and in which, he maintains, it would have been pleaded if it had been thought that it had any application. These cases were:—Hagart, 10 S. 506; Laing, 12 D. 1279; Ettles, 15th December 1809, F. C. The pursuer's counsel pointed out, with regard to the first two cases that, inasmuch as the horse was not said to have received an injury in the defender's stable, it is not plain that the Edict had any application. I may add that in Laing's case the application of the Edict seems to have been at least mooted, as Lord Mackenzie's opinion on p. 1285 clearly shows. With regard to the third case, the defender referred to a phrase in the judgment to the effect that the Edict “applied exclusively to the profession of innkeepers.” I cannot regard this phrase as meaning that the Court deliberately excluded stablers from the category. The question was not before them, and it is manifest that, if the phrase be construed literally, it would also exclude “nautæ,” who are admittedly within the ambit of the Edict. I cannot, therefore, read the cases decided in Scotland as in any way detracting from the clear and definite statements made by the institutional writers on the matter.

As regards cases decided in England, they must be handled with care. Indeed, I am disposed to think that they are irrelevant to the issue. For it is, I think, clear that the Edict was not incorporated in the law of England in the same manner as it has been in the law of Scotland. The defender founds on an expression of Blackburn, J., in the case of Searle to the effect that the Edict is confined to innkeepers and carriers. But that view is guarded by the statement that the matter is regulated by the “custom of England.” A note by Denman, J., in the case of Nugent v. Smith, 1 C. P. D. 19, at p. 29, was also referred to by the defender. The case related not to an innkeeper but to a common carrier, and, while the note no doubt favours the defender's contention, it relates only to the law of England. I arrive at the conclusion that, in Scotland at any rate, the Edict applies to stablers as well as to innkeepers, and that, accordingly, the defender in this case falls within its scope.

Assuming then that the defender is within the ambit of the Edict, quid juris? I think it is plain that he can only escape liability by proving that the injury to the horse confided to his care arose from inevitable accident, or from the action of the King's enemies. The onus is, I

think, on the defender to prove this. If so, I am clearly of opinion that he has failed to discharge it. Indeed, he has not made the attempt. It was suggested in argument by the defender that all he had to prove, in order to escape liability, was that he had taken all usual precautions. I cannot accept that view, if for no other reason than that, if it were sound, the Edict would confer no advantage whatever upon a depositor. It was faintly argued by the defender that the Edict was confined to a case of loss, and did not cover a case of damage. I consider the argument untenable, and unsupported by authority. Accordingly, I reach the conclusion that, inasmuch as the Edict applies to the defender, and inasmuch as he has not succeeded in proving, and has not even attempted to prove, that he falls within the well-known exceptions to it, he is liable to the pursuer in damages.

Even if I am wrong in holding that the Edict applies to the defender, I am of opinion that he is liable to the pursuer in damages. Once it is proved—and, indeed, in this case it is admitted—that the horse was delivered sound to the defender, and was restored after it had been in his custody for some time in such a state that it had to be shot, I am of opinion that the onus is on the defender to show that the injury was sustained without fault on his part or on the part of those for whom he is responsible. The doctrine appears to be well established by the following cases:—Marquis, 2 S. 342; Pullars, 20 D. 1238; Wilson, 7 R. 266; M'Lean, 10 R. 1052. The defender suggested that a distinction existed between cases of hiring and cases of custody. But it is to be observed that in, for example, the case of Wilson Lord Gifford, whose opinion has, I think, a direct and indeed conclusive bearing upon this part of this case, bases his judgment on custody, not on hire. I am of opinion that the distinction suggested by the defender is not sound. The defender further suggested in argument that the case of Sutherland was inconsistent with this view. The decision, if I may respectfully say so, does not appear to me to be a satisfactory one; but I do not think it is inconsistent with those in the cases to which I have referred supra. Sutherland appears to have been a decision upon the pleadings. The pursuer undertook to prove fault, the Court were of opinion that he had not done so, and they accordingly held that his action failed. That that was the ground of judgment appears from the opinion of the Lord Justice-Clerk. As I observe that all the cases which I have mentioned above were cited in argument (the case of M'Lean being erroneously cited as M'Laren), and that they were neither doubted nor disapproved, I am confirmed in my interpretation of the judgment. And, indeed, the doctrine of M'Lean's case seems to be consonant with good sense and reason. The stabler alone knows or can know what happens to the horse. The owner, who has surrendered the custody of the animal, is not in a position to know. If the horse has been injured while in the custody of the stabler, it seems to be in accord with common sense that he should be obliged to afford an explanation of the occurrence rather than that the depositor, who is at arms' length and without means of exact knowledge, should be remitted to prove fault. Assuming the law to be as I have stated it, I am clearly of opinion that the defender has not discharged the onus which lies upon him. He leaves the accident entirely unexplained. But, inasmuch as it is proved that, despite remonstrance, the defender stabled two horses including the pursuer's in the same stall—a practice which several of the witnesses condemn—an explanation of the accident may not be far to seek. If he undertook responsibility for this course, I think that an exceptional degree of supervision was required from his ostler; and, though that servant, who unfortunately died before the date of the proof, is not alleged to have been incompetent, I am of opinion that the evidence led by the defender falls far short of establishing that degree of supervision which the circumstances demanded of him. On this branch of the case I am well content with the judgment of the Sheriff, and I do not desire to supplement further what he has said.

On the whole matter I reach the conclusion that, whether the Edict applies or whether it does not apply, the defender is liable to the pursuer for the sum sued for, and that therefore the judgment of the Sheriff falls to be affirmed.

Lord Hunter.—The principal question argued to us in this appeal was as to whether or not the provisions of the Roman Edict Nautœ, caupones, stabularii as to liability apply by the law of Scotland to livery stable keepers. The Sheriff-substitute held that they did not, but the Sheriff took a different view.

In reaching the conclusion which he did the Sheriff-substitute appears to have been largely influenced by the opinion of Blackburn, J., in the case of Searle v. Laverick . The following passage from the opinion of that learned Judge may be cited as containing a succinct and accurate account of the state of English law on the matter. At page 126 he says: “This kind of bailment (i.e., of a livery stable keeper) is included in what, in the celebrated case of Coggs v. Bernard, (2 Ld. Raym., at p. 917–918), Lord Holt classes as the fifth sort, viz., ‘a delivery to carry or otherwise manage for a reward to be paid to the bailee’; as to which, says Lord Holt, ‘those cases are of two sorts; either a delivery to one that exercises a public employment or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events.’ The language of Lord Holt is general, and applies this to all that exercise ‘a public employment’; and in the Prætor's Edict, Nautœ caupones et stabularii, which is generally considered the origin of this head of the law, stablemen are expressly named (see Dig. Lib. 4, tit. 9, 1. i.). But we [he is expressing the opinion of Mellor and Lush, JJ., and himself] take it to be established law that, by the custom of England, this extreme liability, making the bailee an insurer, is confined to carriers and innkeepers, and that livery stable keepers and warehousemen come within what Lord Holt calls the second sort, as to which he says: ‘The second sort are bailiffs, factors, and such like.’ As to this sort, he says the bailee is only bound to take reasonable care; and ‘the true reason

of the case is, it would be unreasonable to charge him with a trust further than the nature of the thing puts it in his power to perform it. But it is allowed, in the other cases' (i.e., the carrier and innkeeper) ‘by reason of the necessity of the thing.’”

This opinion proceeds on the assumption that stablemen were under the Edict, but that by the custom of England the liability imposed upon them by English law was of a less exacting character. In the case of Nugent v. Smith, Cockburn, C.J., explained that it was a misapprehension to suppose that the law of England relating to the liability of common carriers was derived from the Roman law. Expressions of opinion by English Judges, however authoritative upon English law, will not, therefore, assist in solving the question so far as Scots law is concerned, if the provisions of the Edict were adopted as part of the law of Scotland and if the terms of the Edict extend to stablemen.

I always understood that the provisions of the Edict had been adopted in Scotland, and this view was confirmed by the full citation from institutional writers which we received in the course of a very able and interesting argument submitted to us by counsel on both sides. It is not necessary to refer to these authorities in detail. In Erskine Inst. III. i. 28, occurs this passage: “There are several special kinds of deposit which deserve our particular notice, in so far as they differ in their nature from the common contract now explained. By an Edict of the Roman Prætor, called Nautœ, Caupones, Stabularii, which is with some variations adopted into the law of Scotland, an obligation is induced by a traveller's entering into an inn, ship, or stable, and there depositing his goods, or putting up his horses, by which the innkeeper, shipmaster, or stabler is bound to preserve for the owner whatever is intrusted to his care. This obligation is formed by the law itself; for the bare act of receiving goods lays them under it without covenant. It is limited to what is done in the ship, inn, or stable.”

The appellant maintained that by the law of Rome the Edict did not apply to stablers, but only to innkeepers who keep stables for the accommodation of their guests' horses. The word stabulum was used in two different senses, first, as a standing place which serves as an abode or shelter for man or beast, and second, as an inn or public-house for the temporary accommodation of travellers. In the latter sense the word is said to have referred to an inn for the accommodation of the horse as well as the rider, as distinguished from caupona which was intended for the accommodation of lodgers who travelled on foot. Stabularius meant either a livery stable keeper who keeps a set of stables and takes in horses to bait, or an innkeeper or master of a stabulum which afforded accommodation for man and beast. Mr Justice Denman in Nugent v. Smith has a note at the foot of page 29 to the following effect: “The word ‘stabularii’ here (i.e., in the Edict) is evidently used in the second sense given for it in Facciolati and Forcellini's Lexicon (sub verbo), ‘quimercede homines eorumque jumenta hospitio excipit.’ Passages from Ulpian, Seneca, and Apuleius, clearly showing that the word was used to describe a person almost identical in character with a modern innkeeper, are cited by the authors, who add to the above definition the remark ‘nam stabulum turn ad jumenta pertinet, tum ad homines.’” There is no doubt that the word stabularii had the two meanings ascribed to it, but I have not been able to find justification for restricting the sense in which it is used in the Edict to that of the keeper of an inn with stabling accommodation. In the passages from Ulpian and other learned jurisconsults who commented upon the Edict, referred to in an article by Professor Mackintosh on the Edict in the Juridical Review, 1891, vol. 3, p. 306, there does not appear to be any suggestion that stabularii was used in the above restricted sense. The wealthier citizens of Rome who travelled in carriages drawn by horses frequently enjoyed private hospitality, while they left their carriages and horses in the custody of a stabularius.

We were not referred to any decision in Scotland where the point as to a livery stable keeper being under the Edict was actually decided. In the cases of Hagart v. Inglis and Laing v. Darling the question hardly arose, for, although the point in each case was as to the liability of a stabler, in neither case had the injury to the horses, in respect of which the defender was sought to be made liable, been sustained in the stable. In the latter case Lord Mackenzie said (at p. 1285), “It does not matter whether the case comes under the Edict Nautœ, Caupones, &c., or not. I think there was a want of due care and attention in not obtaining security against an obvious and already experienced danger.” In the earlier case of Hay v. Wordsworth, however, it was assumed both by the bar and the bench that the Edict applied to stablers. In that case a mare had been sent to a stabler and horsebreaker to be broken. It was attacked while in charge of the defender's servant by a strange dog which lay concealed near the stable, broke away, and was injured. The only plea taken in defence was that the horse had been put under the defender's care in his capacity of horsebreaker and not as a stabler. The defender was held liable, the ground of liability apparently being that “a majority of the Court thought there was at least culpa levissima on the part of the defender, which, in his characters of a stabler and horsebreaker, ought to subject him in the loss, both on the Edict and at common law. He ought to have taken good care that his stables should not be exposed to such accidents.”

In cases to which the Edict applies the defender is liable unless he shows that the loss of or injury to the thing arose from a damnum fatale (i.e., the act of God) or the act of the King's enemies. For the appellant it was maintained that there was a third exception which he designated natural accidents.

This argument was founded upon the passage in Bell's Principles, section 235, where the learned author, referring to cases under the Edict, says, “The rule is, that common carriers, innkeepers, and stablers are responsible for the loss of things committed to their charge, although no neglect can be proved, if such loss do not arise from natural and inevitable accident, the act of God, or of the King's Enemies.” I do not think that it matters whether the exceptions to liability are treated under two or three categories. It is generally recognised that the exception “act of God,” as used in Roman and Scots law with reference to the Edict, has a wider significance than that given to it in other branches of law. Lord Chancellor Westbury in Tennent v. Earl of Glasgow explained that “what are denominated in the law of Scotland damnum fatale occurrences” relate to “circumstances which no human foresight can provide against, and of which human prudence is not bound to recognise the possibility, and which when they do occur, therefore, are calamities that do not involve the obligation of paying for the consequences that may result from them.” This interpretation of damnum fatale has not been accepted as determining whether a case comes within the exception to the Edict or not. In M'Donell v. Ettles it was held that accidental fire in the stables of an inn causing injury to a horse which had been lodged there formed an exception to the Edict. Cockburn, C. J., in Nugent v. Smith said, “The Roman law made no distinction between inevitable accident arising from what in our law is termed the ‘act of God,’ and inevitable accident arising from other causes, but, on the contrary, afforded immunity to the carrier, without distinction, whenever the loss resulted from ‘casus fortuitus’ or, as it is also called, ‘damnum fatale’ or ‘vis major’—unforeseen and unavoidable accident.” In the same case James, L.J., said (at p. 444), “The ‘act of God’ is a mere short way of expressing this proposition. A common carrier is not liable for any accident as to which he can show that it is due to natural causes directly and exclusively, without human intervention, and that it could not have been prevented by any amount of foresight and pains and care reasonably to be expected from him.” Accepting this view as sound (and I think it is) of the exception “act of God” within the meaning of the Edict as interpreted in Rome and Scotland, the appellant has, in my opinion, entirely failed to bring himself within the exception. He has not given any explanation of the circumstance that the pursuer's horse which was entrusted to him in a sound condition left that custody suffering from injuries that necessitated its being shot.

In this view of the case it is unnecessary to consider whether the Sheriff was also right in finding that, on the assumption that the Edict did not apply, the defender would still be liable. My own opinion is that a proper application of the principle recognised in Marquis v. Ritchie, Pullars v. Walker, Wilson v. Orr, and M'Lean v. Warnock to the proved facts of this case justifies the conclusion of the Sheriff.

Lord Anderson.—This important and interesting case has been carefully considered by the Sheriffs, and we had the advantage of a thorough and able argument on the appeal. I have reached a conclusion adverse to the defender with a certain measure of regret, as I do not think that he is proved to have been blameworthy in connexion with the custody of the horse, and liability only attaches to him because of the stringent law of the Edict. But our duty is to declare what the law is, not what it ought to be; and, if the Edict applies, the defender must be held responsible, however harsh that law may seem to be in a case like the present.

It is said that the law of Scotland has adopted the Edict, but perhaps that is not quite an accurate mode of expressing what has been done. If a legal system like ours desires to borrow from the law of another country, this may be done in one of two ways:—(1) By formal and express adoption by means of an Act of Parliament. A noted example of this mode is found in the Act 1567, cap. 14, which borrows the ancient Jewish Law embodied in the 18th chapter of Leviticus. (2) The other method is by the establishment of customary law similar to that which is copied. That is the method which has been followed with reference to the Edict in this country.

Where formal adoption by statute takes place, it will be necessary to ascertain exactly what the law was which has been assimilated. Had the Edict been adopted in this way, it would have been necessary to determine what the law of Rome was as set forth in the Edict, and, in particular, what was the signification in that law of the term stabularii. But, where the second method of appropriation is followed, the system which borrows may expand or circumscribe what is borrowed. Thus the law of England, if it has copied the Edict, does not exact the extreme decree of diligence prescribed by the Edict from a livery stable keeper—Searle, (1874) 43 L. J., Q. B. 43. Again, both in England and in Scotland, the scope of the Edict has been expanded so as to embrace public carriers by land as well as by water. These considerations, in my opinion, make the question purely academic as to what was the meaning of the term stabularii in the law of Rome. Our business is to ascertain, not what was the law of Rome, but what is the law of Scotland. I have no hesitation however in stating on this point that, in my opinion, the term stabularii meant, or at all events included, livery stable keepers. The epoch of the Prætorian Edict (367 B. C. till the reign of Hadrian, when the whole Edict was revised and consolidated by Salvius Julianus) included the period at the latter end of the Republic and beginning of the Empire, when the wealth and luxury of Rome had reached their zenith. I have no doubt that livery stables unassociated with inns then existed, and that the Prætor designed to apply to the keepers of these the provisions of the Edict. There were, in such establishments, opportunities for dishonesty equal to those which offered themselves to carriers and innkeepers.

But it is unnecessary to pursue this topic further, as the point to be ascertained is whether the law of Scotland subjects livery stable keepers to the observance of the exact diligence prescribed by the Edict. Has, then, the customary law of Scotland applied the Edict to those who keep livery stables unassociated with an inn?

The evidence that an alleged custom is part of our common law is to be derived (1) from the institutional treatises on the law of Scotland, and (2) from the decisions of the Court which declare the common law. Of our institutional writers Stair, Bankton, Erskine, and Bell, have each something to say regarding the Edict. Stair (Inst. I. xiii. 3, and I. ix. 5) seems to regard the Edict as having applied by the civil law to the master of a stable as well as of an inn, but he expresses no opinion as to the law of Scotland on this point. In More's note H (p. lvii., vol. i.) stablers as well as innkeepers are held to fall, by our law, within the scope of the Edict. Bankton (Inst. I. xvi. 1) states that the three classes in Scotland affected by the principles of the Edict are masters and owners of ships, innkeepers, and stablers; the latter being liable if they “suffer” horses and cattle to be brought into the stables. Erskine (Inst. III. i. 28) states that the law of Scotland applies the provisions of the Edict to “an inn, ship, or stable,” and imposes the edictal obligations on “the innkeeper, shipmaster, or stabler.” Bell (Com. III. iii. 5, M'Laren's ed., vol. i., p. 495) says: “As the persons comprehended within this Edict, shipmasters and carriers, innkeepers and stablers, have frequent opportunities of associating themselves or their servants with robbers, thieves, and pilferers of all descriptions, while the secret connection often cannot be detected, and as even their negligence cannot always be proved so as to ground a claim, the safety of the public is to be secured only by presuming everything against those persons, and taking nothing as an excuse or justification for the loss or injury to goods received by them, but evidence of a natural and inevitable accident.” Again, when dealing with the “Persons liable to this responsibility” (pp. 496–499) he refers to “Innkeepers and Stablers” (p. 498) under distinct heads, his statement as to stablers being that they “are liable not only for the horses placed under their charge, or that of their hostlers or servants, but also for the horse furniture, etc., which is brought into their stables” (p. 499). In his Principles Mr Bell (section 235) enumerates the three classes to which the Edict is applied by the law of Scotland as “common carriers, innkeepers, and stablers;” and again (section 236) he states that, amongst persons who are subject to the rule, are “Innkeepers, vintners, and stablers.” The institutional writers would thus seem to support the view contended for by the pursuer's counsel.

When the decided cases are examined, the matter seems to be put beyond doubt, and the defender's contention negatived. That contention was that, both by the laws of Rome and Scotland, the responsibility of the Edict applies only in the case where a guest in an inn has placed his horse in the stable of the inn. There are, as it seems to me, three decisions which are hostile to this contention.

The first is that of Chisholm, in which a stabler was found liable under the Edict for a traveller's money stolen out of his valise which was upon his horse in the stable. It is true that the defender was also an innkeeper, but the pursuer was not a guest in the inn. He had merely made a temporary stoppage for the purpose of baiting his horse. The defender, indeed, founded on this circumstance, and argued that “he could not be answerable for what money was brought upon a horse put up in a common stable, without any intimation or advertisement to take a special care of that cloak-bag.” But, on a reclaiming petition, the

Lords “in respect that the pursuer was not to lodge in the house all night, but only to rest and refresh himself and horse at midday, adhered to their former interlocutor, finding the defender liable.”

The next case is that of Hay. This decision is exactly in point, as there was no inn associated with the stable. The action was based on the principle of the Edict, and the stabler was found liable for the value of the injured mare both on the Edict and at common law. The Sheriff has found the interlocutor in Hay's case puzzling because of its reference to culpa levissima of the defender; but, if the pleadings are carefully examined, the judgment is quite intelligible. The defender, in answer to the case under the Edict, pleads damnum fatale, to wit, the attack of the strange dog. But this was only one of the causes of the mare's injury; the other was the presence of benches in the area which had to be traversed by the mare, and for this the defender was held responsible. It is not enough, in reply to an action based on the Edict, to establish that an act of God occurred; a defender must also show that the consequences of such act could not have been averted by the exercise of due care on his part. All this is explained in the judgment of Cockburn, C.J., in Nugent.

The third case is that of M'Donell. It does not appear from the report of the case whether or not the pursuer was a guest in the defenders' inn, which would make it seem as if this circumstance was immaterial. The defenders were sued as stablers, under the Edict, in respect of the loss of three of the pursuer's horses which had been put up in the defenders' stables and had been destroyed by a fire which burnt down the stables. The defenders pleaded that the fire was a damnum fatale, and this defence was sustained by the Court. The authorities I have referred to seem to me to establish the proposition that the principle of the Edict applied to the defender.

It was maintained, however, for the defender that, even if the Edict did apply, the defender had discharged the burden of proof which is thereby laid upon him. In an action of this sort, as in every action, a pursuer must prove his case. But, in an action based on deposit, a pursuer proves his case if he establishes (1) that an article was deposited; (2) that it was lost or injured while in the custody of the depositary; and (3) the extent to which the pursuer has thereby been damnified. Having proved these matters, a presumption of negligence is established which shifts the onus probandi, and, if the principle of the Edict applies, a defender can only rebut this presumption by showing that the loss occurred (a) by the pursuer's own fault; (b) by the act of God; or (c) by the act of the King's enemies. A defender must also show, as I have pointed out, that the consequences of the act of God founded on could not have been averted by the exercise of care on his part. In every case where the act of God is pleaded in defence it is essential that the defender should prove how the accident occurred, as a first step in his task of rebutting the presumption. Now, in the present case the defender has failed to take that first step, for the proof leaves us entirely in the dark as to what caused the injury to the horse, or what led it to injure itself. The defender has therefore failed to establish the defence of damnum fatale.

The only other point taken by the defender's counsel on the Edict was that it did not apply to loss as the result of accident. This contention is not well founded, as both the law of Rome and that of Scotland make those to whom the Edict applies responsible for loss as the result of accident as well as by theft. As to the law of Rome, Gaius put the matter quite conclusively—(D. IV. ix. 5) “Quaecunque de furto diximus, eadem et de damno debent intellegi; non enim dubitari oportet, quin is, qui salvum fore recipit, non solum a furto, sed etiam a damno recedere videatur.” As to the law of Scotland, Erskine (Inst. III. i. 28) makes it plain that damage as well as loss by theft is covered by the provisions of the Edict; and Bell (Com., vol. i., p. 499) says expressly that there is responsibility if the deposited goods have perished “or have suffered injury by inevitable accident.” The case of Hay is a direct authority to the same effect.

If the principle of the Edict applies, as in my opinion it does, this is a sufficient ground for the decision of the case in favour of the pursuer, and it is therefore unnecessary to determine whether or not the defender is also liable at common law. I have already indicated, however, that the impression I have formed on this part of the case is that the defender has proved that he exercised due care in the discharge of his duty as custodier of the horse.