Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Seton of Barns v. Findlay and Carmichael
Date: 29 January 1680
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In the case betwixt Seton of Barns, and Findlay and Carmichael, both brewers in Edinburgh; the Lords having heard the debate reported by Castlehill, they found that the obligement in the contract of victual being to deliver marketable stuff, it was sufficient that the victual delivered was marketable, albeit not sufficient to make malt of; unless it be offered to be proven, scripto vel juramento, that it was communed that the victual to be sold was for making of malt: which, if it be proven, then they find it relevant to exclude the reason of suspension anent the insufficiency of the victual, for the charger to offer to prove that the victual is the same which the suspender saw on the charger's barn-floor and girnels, and were satisfied therewith after the bargain was made. And find also the reason not relevant, unless the suspenders allege, that, immediately after they found the victual insufficient, they intimated the same to the charger; and also, that the suspenders prove that the victual, so insufficient, was taken out of the foresaid victual seen in the charger's barn and girnles; and that the said insufficient victual was a part of the victual, received by them from the charger and his servants.
