Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Inglis of Murdestoun
v.
Fary in Glasgow

Date: 24 June 1669

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Murdestoun being charged for payment of the sum of a thousand merks, conform to his bond, did suspend, and intent reduction, upon this reason:— That the bond was granted by him when he was minor, to his hurt and lesion, it being for the exchange of a horse and a mare; wrhereas the horse received was of no better value than the mare given.

It being answered for the charger, That, by a ticket apart, he had declared himself to be major, and had promised, upon soul and conscience never to quarrel the same. Likeas thereafter, he did grant a bond of corroboration of the foresaid bond.

It was replied for the suspender, That he was cheated when he did grant that bond of corroboration, being made drunk by the charger; which he referred to his oath, and whereupon he had intented a reduction ex capite doli.

The Lords, notwithstanding, found the letters orderly proceeded; seeing they could not allege that he was drunk the time of the granting the first bond, and that he never having quarrelled the same till both the horse and the mare were out of their possessions;—that the bargain was made in a public fair and market, where it is lawful to a seller to appreciate his horse as he pleases;—they would not repone him against his own oath and bond, and his bond of corroboration; seeing, in emptione et venditione, the law allows invicem decipere; against which there is no remedy, nisi sit infra dimidium justi pretii; which ground could not be here insisted on after so long a time; and that the horse and mare were not extant, that they might be appreciated.

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