Actio redhibitoria et quanti minoris. - Error in substantialibus.
Maclean of Lochbuy v. Donald Macneill of Collonsay
Date: 23 June 1757 Case No. No 8.
Found to be sufficient ground for diminishing the price of lands, that they did not entitle to a vote, when it was bargained that they should entitle.
Click here to view a pdf copy of this documet : PDF Copy
Maclean of Lochbuy sold the lands of Ardlussa and Knokintavell in Argyleshire to Macneill of Collonsay.
At the time of the sale, it was averred by Lochbuy, and understood by Collonsay, that these lands were each of them a two merk land of old extent, so as to entitle the holder of them to a vote in the election of a member of Parliament. This consideration was one of Collonsay's inducements, who had no vote in the county, for making the purchase. The disposition, however, contained no such condition. It only described each of the lands to be a two-merk land of old extent.
It afterwards appearing, that the lands conveyed were not valued at four merks of old extent, nor entitled to a vote in the county, Collonsay suspended, and insisted, either for a resolution of the sale, or an abatement of the price.
Pleaded for Lochbuy; The allegation, That it was actum et tractatum at the time of the sale, that the estate sold should entitle to a vote, was neither relevant to resolve the sale, nor abate the price; in respect Collonsay could not qualify any damage he sustained by the want of a vote; and that to say a vote had a value in money, was an allegation in itself indecent, and contrary to the spirit of the British constitution.
Answered for Collonsay; The privilege of electing, and the capacity of being elected into Parliament, are the privileges that distinguish the subjects of Great Britain from those of almost all other nations. By them a man may become a part of the Legislature, to guard the honour and property of himself and his fellow-citizens; and accordingly, in advertisements of estates to be sold, this privilege, when it attends the subject offered to sale, is always mentioned as a circumstance to enhance the estimation of it.
“The Lords found it relevant to diminish the price of the lands, that it was intended by the parties, that the lands should entitle the purchaser to a qualification as a freeholder having right to vote at elections.
N.B. An averment was afterwards made by Lochbuy, that the lands at the time of the sale did entitle to a vote.
Act. Wedderburn, Craigie, Ferguson.Alt. Jo. Dalrymple, Hamilton-Gordon, Lockhart.
Fol. Dic. v. 4. p. 255. Fac. Col. No 28. p. 49.
