Scottish Court of Session Decisions

Subject_1 SALE.
Subject_2 DIVISION II.

Sale of Moveables.
Subject_3 SECT. IV.

Lesio ultra duplum. - Sale by sample, - weight, - measure, &c. - Actio redhibitoria et quanti minoris.

Laird Aiton
v.
James Fairie

Date: 29 January 1668
Case No. No 53.

It was alleged, that a horse sold for six years old, was twelve. Found irrelevant, unless the horse had been offered back recently after the purchase.

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The Laird of Aiton having bought a horse from James Fairie, pursues for repetition of the price, and for entertainment of the horse since, upon this ground, That he offered to prove by the witnesses, at the buying of the horse, that James Fairie promised to uphold him but six years old, and that he was truly twelve years old. The question was, Whether this was only probable by oath or witnesses.

But the Lords perceiving an anterior question, how soon the horse was offered back by the pursuer, they ordained him to condescend, that very shortly thereafter he offered the horse back, otherwise they would not sustain the process.

Fol. Dic. v. 2, p. 357. Stair, v. 1. p. 517.