Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 27 January 1685
Alexander Bothwell v. Alexander Hay
Click here to view a pdf copy of this documet : PDF Copy
Alexander Bothwell having charged Alexander Hay, wright, on his bond for £17 sterling, as the price of some plenishing he was obliged to have delivered to him betwixt and the 1st of January 1685, in respect of his failyie to do it:—the reason of suspension was, that he had offered the goods within the days of the charge of horning; and that the delivery of the goods was that which was principaliter deductum in obligationem, and the payment of the price was only adjected in modum pænæ;, or as damnum et interesse succeeding loco rei, and so was still purgeable, l. 91, § 3, D. de Verb. Obligat. 2do, The charger's instrument, requiring the goods on the 1st of January, was preposterous and null, and so could not constitute the defender in mora, because the 1st day of January being the day appointed for their delivery, that whole day was introduced in favour of the debtor in this alternative obligation, per § 2. Institut. eod. tit.
This being reported by Harcus, the Lords found it sufficient to assoilyie and exoner the suspender, that he offered the goods before the out-running of the six days of the charge, it being modica mora; unless he could prove some real and material damage through not getting them on the precise day.
