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Scottish Court of Session Decisions >>
John Johnston and James Gordon v Charles Dirry. [1696] 4 Brn 302 (31 January 1696)
URL: http://www.bailii.org/scot/cases/ScotCS/1696/Brn040302-0658.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Johnston and James Gordon v. Charles Dirry
Date: 31 January 1696
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Mr John Johnston and James Gordon, merchants in Aberdeen, against Charles Dirry, merchant in Edinburgh, for the price of a parcel of cork they had sold him.
Alleged,—It was arrested by the Dean of Guild of Edinburgh with sundry other goods; because, having brought our ship to the port of Leith, we had broke bulk before we had made offer to the town; contrary to one of their acts.
Answered,—They had loosed the arrestment within a few days after, and had offered it to him; and he, having bought some raisins from them as well as the cork, he took away the raisins, notwithstanding of the arrestment he now pretends, but refused the cork; because he found he would gain by the first, but not by the second: Likeas, there was a symbolical delivery of the cork, by weighing it in the public weigh-house of Leith.
The Lords observing there was an appearance of a trick here, and that nothing was more destructive of commerce than calliditas et fallacia, they allowed the pursuers to prove, though both raisins and cork were affected by the arrestment, yet he took away the raisins after the same, and refused the cork, to make him liable in the price of both.
