Scottish Court of Session Decisions

Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

John Brown, Factor in Edinburgh,
v.
Thomas Somervell there

Date: 16 June 1671

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This is an action pursued before the Town Court, Sir David Inglis in Bordeaux, draws a bill upon Mr. Somervell of 5 or 600 franks, payable to John Brown. This bill being presented was accepted; yet being pursued for the money before the Bailies of Edinburgh, his defence was this, That with the bill he received likewise a letter of advice from Sir David, bearing that he needed not scruple to answer the said bill, in respect he would send him a parcel of good and sufficient wines, that would do more than repay him his money disbursed by accepting this bill; which was the sole motive that induced him to accept the bill. But the wines being now come home, there being nothing more rotten nor insufficient than they; and, therefore, since the only cause of his accepting that bill, was in hopes to have got good wines, which failyeing, he must be freed of the bill, at least of so much thereof as must in reason be abated of the price of the wines, by reason of their utter insufficiency. The Bailies not laying great weight upon this, Somervell advocates the cause to the Lords upon this reason, that his defence being in ipsis apicibus juris, and founded on the common law, viz. on the redhibitorian action quanti minoris; and that the bailies though most honest men, yet were not civilians; therefore that the question was altogether proper and competent to the Lords' cognition, and fit allenarly to be decided by them.

This being heard, it was taken to interlocutor to the Inner House; where the Lords found it was no good ground of an advocation, and therefore remitted the cause again to the baillies, et merito.

Advocates' MS. No. 176, folio 99.