Scottish Court of Session Decisions

Subject_1 QUALIFIED OATH.
Subject_2 SECT. V.

No exception will be sustained unless proponed at Litiscontestation.

Gordon
v.
Cusigne

Date: 3 January 1674
Case No. No 48.

A person having deponed in an action against him, that he had bought a horse, and delivered the pursuer a cow, which was accepted as the price of the horse, the defender was found obliged to prove what be had deponed.

Click here to view a pdf copy of this documet : PDF Copy

Anna Gordon pursues William Cusigne for several sums and goods of her's intrusted to him, and wherewith he had intromitted, and, amongst others, for the price of a horse; he deponed, that he received and bought the horse at the price of L. 24 Scots, and deponed that he delivered to her a cow, which she accepted for the price of the horse; whereupon the question arose, whether this was a competent quality in the oath, or behoved to be proved as an exception; for if he had deponed that he bought the horse at L. 24, and that he paid the same, payment would have been made a competent quality, the libel being referred to the party's oath, but compensation would not have been a competent quality, but behoved to have been proved.

The Lords found, that if the acceptance of the cow for the price of the horse had been a part of the bargain at the same time with the sale of the horse, it had been an intrinsic quality, declaring a part of the bargain; or if it had been payment ex post facto in money, conform to the bargain; but being the acceptance ex post facto of the cow for the same price, which was in effect a new sale of the cow, they found that it was no competent quality, but behoved to be proved.

Fol. Dic. v. 2. p. 299. Stair, v. 2. p. 246.