Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 WINTER SESSION. - Anni 1973.

James Syme
v.
Inglis of Murdeston

1673. November.

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James Syme, tenementar in Hamilton, charges Inglis of Murdeston on a bond for 200 merks. He suspends; offering to prove, by the charger's oath, that the true cause of the granting of the bond was not borrowed money, but for the price of a horse: which being granted, then offered to prove by witnesses, that the said horse was scabbed, and insufficient, and not worth the money, and that he offered him back.

Answered,—The reason was not relevant to be proven by witnesses, contrary to the brocard of law, That writ cannot be taken away but by a contrary writ or oath of party. Idem eodem modo dissolvi quo colligatur, naturale est; 1. 35. D. de Regulis Juris. Dury, 15th July, 1624, Nisbet against Short; supra, numero 329, in February, 1672. 2do, Esto the horse had been insufficient, sibi imputet, his eye being his merchant; unless he will make it relevant, and offer him to prove, that the seller, now charger, promised to warrant and uphold the horse, or knew its imperfections and fraudulently concealed them, or that they were so latent as they could not be perceived save after some time's trial. 3tio, He must say, that how soon he discovered the imperfection, he instantly intimated the same to the seller, and offered him back. And all which, to take away his bond, may be proven allenarly scripto vel juramento.

Replied,—That the bond was no other way here to be taken away but by the charger's oath, who once deponing and confessing the condition and cause onerous of the bond to have been for the price of a horse, that reduced the case to the nature of a bargain, the terms whereof no lawyer controverts but are probable by witnesses:—Vide supra, in December, 1672, No. 378. in calce. And he needed not prove the charger promised to uphold it, because nemo ex suo dolo lucrari debet, actionem ve consequi, 1. —. D. de Regulis Juris; et contractus emptionis et venditionis is bonæ fidei, in which trust is most exuberantly relucent; and the edictum ædilitium has introduced, upon most rational considerations, the redhibito-rian action, in case of latent vitiosity.—See my observes alibi on that edict, and a decision on the 1st of July, 1657, Fleeming and Reid.

The Lords found, the bond might be taken away in the manner offered in the reason: and that the charger acknowledging once it was for the price of a mare, then witnesses might be led as to terms, communing, agreement, and the insufficiency of the thing sold.

Which was thought somewhat lax, exposing all bonds granted for any other cause than borrowed money, (which bonds are very frequent in buying wares from a merchant, &c.) to be cavilled on and exposed to the tentation of the integrity of witnesses, if the goods given for the bond were sufficient; and draw the most tedious, troublesome, and uncertain inquiry into their goodness or badness, after many years.

If the Lords had ordained witnesses to be examined before answer ex officio, the hazard had not been so great, for that cannot be drawn into a preparative and example. However, I find the Lords wanted not precedents for what they did; for Dury tells us, on the 23d of June, 1626, the same was then decided between Maxwell and Drumlanrick; see him, also, at the 26th of July, 1622, Esilmont and Buckie. Vide infra, in February, 1676, James Brown and Matthew Loury, numero 470.

When the probation came to be advised, the Lords found the insufficiency of the horse proven, and the offer back; and thereupon suspended the letters, and assoilyied from the price. But if they had adverted, that the charger never got back his horse, but that he strayed waiff, it had been much more just to have modified something to the charger for his horse actione quanti minoris, upon the account of the scab it was proven he was infected with, and not make him lose both horse and price; but Sir Jo. Dalrymple was for the suspender. See Stair's System, tit. 10. Of Conventional Obligations. Dury, 9th January, 1629, Brown and Nicolsone.

Advocates' MS. No. 429, folio 228.