The responsibility is said to extend to every loss which is not occasioned by the act of God or the king's enemies, viz. by natural causes which could not be foreseen, or by war.1 Fire is considered as of the former order in Scotland, if fraud be not proved; but not so in England, unless it be occasioned by lightning. It seems not to be decided in Scotland whether robbery comes under the latter exemption. In a case where housebreaking was committed in a lodging-house, the court did not decide whether or not a letter of lodgings was to be looked upon in the light of an innkeeper, but held that in the circumstances, even if she were so, she would not be liable. Robbery is, in England, no limitation, except in case of the statutory limitations in favour of shipowners, whose responsibility has been considered more at length in another place.*

The palpable carelessness of the owner-as by his depositing small and valuable articles on a passage-table of an inn, or in a stable, will exempt parties from liability; but it was fourd not to exempt an innkeeper, that a traveller, on his arrival, gave his greatcoat, containing in the pocket a pocket-book, in which were £74, to a waiter. The money was stolen by a servant of the inn.

6

Persons. The responsibility for the safety of persons who commit themselves to the charge of innkeepers and public carriers, is not founded on the principle of insurance; the safety of the traveller is not ensured, but those to whose care he commits himself are responsible for any injury he may incur by their misconduct. Thus, in the case of stagecoaches, where the slightest act of carelessness is productive of the most serious effects; "neglect of the rules of the road; rashness in going too near to the edge of the road, or to any obstruction; want of skill in driving; racing against other coaches; taking up more passengers than the law allows, where the injury can be traced to overloading as a cause ;all of these will be held sufficient to charge the principals with the effect of any accident from which loss or injury arises."7+

Exceptions from Responsibility.-If the carrier be not a public carrier, but specially hired, he does not ensure the safety of the property, but merely comes under a general engagement to bestow due care on it. Any public carrier

Sir W. Jones on Bailments, 104.-2 Iv. Er. 600.-3 G. F. Jones on Carriers, 18. Watling v. M'Dowall, 10th June 1825.- Sir W. Jones, 104. G. F. Jones, 10, 47.-* See above, p. 277.-6 M'Pherson v. Christie, 6th May 1841.7 B. C. i. 462.-+ As to deaths from careless driving, see above, p. 430.

may limit his responsibility in the same manner by special

contract.

66

It was long a matter of dispute how far the responsibility, as defined by law, could be limited by notice,-this matter has now been arranged by statute. There are certain articles for which stage-coach proprietors are not liable if they exceed the value of £10, unless the value be intimated. The articles specified are gold or silver coin of this realm, or of any foreign state, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewellery, watches, clocks, or timepieces of any description, trinkets, bills, notes of the governor and company of the Bank of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securities for payment of money, English or foreign stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate, or plated articles, glass, china, silks in a manufactured or unmanufactured state, and whether wrought up or not wrought up with other materials, furs or lace."1 Coach proprietors or carriers may put up a notice in their office announcing additional rates of charge for such commodities, and all parties are bound by the notice whether they have seen it or not.2 If such notice is not affixed, or if a receipt be not given if required for any parcel liable to the higher charge, the responsibility is not limited. No notice can limit the responsibility, except in the cases and to the extent above stated, the parties being of course entitled to make their own arrangement as to any particular transaction. If the parcel be lost, it is not taken as at the value at which it is entered-the real value must be proved in the ordinary manner.5*

Evidence of Loss.-The evidence of the amount of loss cannot but be of a very dubious nature. It is usual to allow the oath of the party, as supplementary to imperfect extraneous proof. The essentials of this partial proof seem to be, 1st, That the pursuer should prove that he has been deprived of something in the manner he alleges; and, 2d, That what he specifies himself to have lost was something which he might naturally, and without inconsistency, have had in his possession, and for the safety of which it was in the way of the defender's business to provide; or otherwise that he had informed the defender of what it was, and what

111 Geo. IV. & 1 Wm. IV. c. 68, § 1.-2 Ibid. § 2.-3 Ibid. § 3.— Ibid. § 4.5 Ibid. § 9.-* On the subject of the limitations with regard to shipowners, see p. 277.

risk he ran :-Thus, where a person had arrived at an inn openly with a valise in his possession, and the valise was cut open, he was found entitled to give his oath as to the amount of money stolen;1 and a person bringing an action against an innkeeper for money stolen out of a portmanteau, was ordained before giving his oath to prove that he had brought a portmanteau to the inn, and that he had a short time before received money. It is ruled that the oath of the pursuer may be taken before a jury.3 There will, however, in general, in the case of the transmission of goods of value be pre-existing evidence, in the shape of an invoice or way-bill, and it has been found that the liability is fixed by the contents of such a document.4

In a later case, a parcel from one merchant to another was deposited with a stabler, to be sent per carrier. The person who sent it was in the habit of so sending money. He was seen to make up and address the parcel as if it had money in it, and showed anxiety about its delivery, on hearing the failure of which he instituted an inquiry. The parcel was afterwards found in the stabler's house, filled with rubbish. The pursuer was allowed to swear that he had put £20 into it.5

SECT. 6.-Breach of Engagement.

The extent to which the obligation of a party to a contract can be absolutely enforced against him, has been considered above.* It is a general rule that the party to a contract who is a sufferer by another failing to perform his obligation is entitled to damages. The contracts to which this remedy in general applies are Sale, Trust and Service, and Letting and Hiring; and in discussing these contracts, the remedies for nonfulfilment have already received attention.† In other contracts, such as Copartnership, cases may occur where an action of damages is the proper remedy for nonfulfilment of the contract; but in the contracts of Cautionry, Insurance, and others where the payment of money is the principal element of the original engagement, it is difficult to suppose circumstances in which an action of damages can be the proper remedy. A mere promise on the one part, where there is no contract, cannot be a ground for obtaining

'Chisholm v. Fenton, 10th December 1714, M. 9241.-2 Gordon v. Murray, 19th January 1700, M. 9237.-3 Crawcour v. St George Steam Packet Company, 30th July 1842.- Bishop v. Mersey and Clyde Company, 19th Feb. 1830.-5 Williamson v. White, 21st June 1810.-* See p. 426.-+ See pp. 149, 245, et seq., 283 et seq.

damages, except in the peculiar case of a promise of marriage; and it may even be said that in this case there must be an understood, if there be not an express acceptance.

Our practice does not exhibit many instances of actions for simple breach of promise of marriage, because in the circumstances corresponding with those in which such actions are raised in England, Declarators of marriage are the usual recourse in Scotland. It was at first held that there could be no damage for simple breach of promise unless some pecuniary loss could be shown. It came afterwards, however, to be settled law, that the injury occasioned by the non-performance of an engagement to marry was in itself a good ground for awarding damages. Where this was solemnly decided, the Lord Justice Clerk said: "To allow a man to violate the foundations of civil society, to sport with the feelings of another, and to expose her to ridicule and contempt, and to hold that he is entitled to go on to the last moment, and then to say that there is no pecuniary injury, is just to say that in this country the most grievous wrong may be done, for which this court will give no redress."2

CHAPTER III.

PRESCRIPTION AND LIMITATION OF OBLIGATIONS.

SECT. 1.-The Long Prescription.

*

REFERENCE has already been made to the title which may be acquired to heritable property through a series of consecutive titles, covering a period of forty years. It is there stated that to allow this positive prescription free operation it must be accompanied by negative prescription, or the absence of any effort on the part of one who may have a competing title to put his claim in force. Independently, however, of the existence of any positive prescription, the negative will of itself operate in destroying a claim by one party in cases where it cannot be directly said that there is relative possession on the part of another. The act creating

Fraser i. 162. Johnston v. Pasley, M. 13916.- Hogg v. Gow, 27th May 1812. See above, p. 59.

prescription says of obligations generally, "The party to whom the obligation is made, that has interest therein, shall follow the said obligation within the space of forty years, and take document thereupon. And if he does not, it shall be prescribed and be of no avail, the said forty years being run and unpursued by the party." Prescription runs from the day when fulfilment of the obligation became exigible; it is effectual in all cases of debt, bonds, provisions in marriage-contracts, &c., and even to elide a right to challenge the validity of a deed, provided the challenge be on ground extraneous to the terms of the deed, as that it was granted on deathbed, &c.2 (See above, p. 97.)

Interruption. The long prescription may be interrupted, 1st, Judicially, by action raised and called in court for performance of the obligation before the expiry of the forty years; 2d, By a new document or acknowledgment of the debt, or by a partial payment or payment of interest, which is expressly referrible to the debt in question. Prescription thus interrupted ceases to run, and will no more affect the obligation than if it had not been in course of completion. From the moment when the interruption ceases a new course of prescription will commence.3 A mere citation may be employed to interrupt prescription, but it must be renewed every seven years, if not carried farther.4

Suspension.-Prescription can only be interrupted by the act of the person against whose claim it is running. It may be suspended, however, on account of his inability to act. Suspension of prescription takes place during minority; and so, if the person having a claim have been twenty years a minor, he cannot lose his claim by the negative prescription in less than sixty years.5 Where the price of lands sold by judicial sale had not been paid, the effect of prescription in favour of the purchaser was not elided by the circumstance of some of the creditors being in minority. A similar suspension is said to take place in all cases where the creditor is physically disabled from acting. This may occur from idiocy or madness, or from imprisonment in a foreign country. Prescription against a wife's claim on her marriage-contract is suspended during the existence of her husband.7

2

1 1469, c. 28.- 1617, c. 12. E. iii. 7, 7, 8, 9.-3 E. iii. 7, 38-43.1669, c. 10.-5 E. iii. 7, 35-37.-6 Allan v. Brander, 8th March 1839.7 E. iii. 7, 35-37.