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.
James Ogilvie of Cluny v. Charles Stuart
Date: 5 January 1700
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Mr James Ogilvie of Cluny pursues Charles Stuart, merchant in Perth, for delivery of twenty dozen of pairs of stockings, conform to a sample produced, and a bargain betwixt them in presence of sundry famous witnesses. Alleged,—The whole affair was mere sport, being inter pocula, and noways designed to oblige either party, but only verba jocantia et jactantia; which may appear from this, That the price agreed on, of fourteen pence the pair, was impossible to be afforded at near the double. Answered,—The thing was serious, and earnest given upon it; and Cluny twice loosed him from the bargain; but the defender cried the third time for the dollar of arles, and would stand to the bargain.
The Lords found, he having taken the earnest three times, he behoved now to be in earnest; and found the bargain obligatory. Some doubted, the value arising to more than £100 Scots, if it could be proven by witnesses; but it was found, a bargain of such moveables was not, quoad modum probandi, confined to that sum.
Then it was alleged, that it was expressly communed the bargain should be redacted into writing; and, before that was done, there was always locus pœnitentiœ; and he actually resiled the next day.
The Lords sustained this reply,—that it was agreed to be put in writ; and found it probable in the same manner by the witnesses present.
