Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
John Pearson v. John Taylor
Date: 13 January 1699
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John Pearson, seaman in Dunbar, against John Taylor, merchant in Montrose, for payment of £338 contained in a bond, as the price of some lasts and barrels of herring. The reason of suspension was,—That it is a rule in all contracts, dolum malum abesse debere, et emptione venditione bona fides exuberare debet; but you was in pessimo dolo, for I having bought them as sufficient, when they went abroad, the first two or three rows and lays of the herring were found good, and all below them naught and insufficient, as a testifícate from his factor abroad bears.
Answered,—His bond is opponed, acknowledging it was granted for good and sufficient well-packed herring; which cannot be taken away but only by his oath. 2do. The 5th Act of Parliament 1693, anent the loyal curing of herring and salmon, not trusting to factors' declarations anent the insufficiency of goods sent abroad, has prescribed another method, That if their insufficiency be discovered at the port of discharge, there must be a probation taken of it at that place by the merchants' judge, or the oaths of the merchants or skipper, that they may have recourse for their damages; which is not followed here.
Replied,—Latent insufficiency of goods is always probable by witnesses; and the suspender will yet get declarations of their insufficiency from abroad.
The Lords found, Seeing he had neglected the order prescribed by the Act of Parliament, his reason founded on the brackishness and utter uselessness of the herring was now only probable by the charger's oath.
