Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 SALE.

James Lindsay
v.
John Wilson

1771.

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In the case of a sale of two horses, James Lindsay, merchant in Dysart, against John Wilson, the Lord Ordinary pronounced the following interlocutor:—

“Finds it proved, That the charger did purchase the two horses in question from the suspender, at the agreed price of ₤30 sterling: Finds it proved, that, at the time of the sale, the said two horses were both of them lame, and had been so for several months before; but finds it proved, that the lameness was such as might have been observed by any person who had viewed them with ordinary attention: Finds it proved, That the charger did look at, and view the horses, both before and at the time of the sale; and therefore, and in respect that the charger has not proved his allegeance that the suspender had upheld the horses as sound horses, or that he had afterwards agreed to take them back, sustains the reasons of suspension, and decerns.”

But, upon a reclaiming petition and answers, the Lords unanimously altered this interlocutor, and found the letters orderly proceeded. It is an implied obligation on the vender, in all sales, omne vitium abesse, particularly as to horses. See 16th June 1761, Ralston against Robertson.