Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Tassie
v.
M'Lintock

Date: 24 July 1764

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A man's son was apprehended by a messenger for payment of a debt of L.50 sterling, and he was let go upon an alleged promise of the father to pay the debt; and it carried, only by the President's casting vote, that this promise was not proveable by witnesses;—dissent. Alemore and Auchinleck. There appears to be a little nicety to make the distinction what promises, by our law, are proveable by witnesses and what not. A mere gratuitous promise to pay a sum of money by way of donation, is clearly not proveable by witnesses; but of promises for valuable considerations some are so proveable and some are not; for example, a promise to pay money for a horse or any other moveable is certainly proveable by witnesses ; but, on the other hand, a promise to pay a sum of money which a man had borrowed is certainly not proveable by witnesses ; and it was decided in two cases, Donaldson against Harrower, 3d July 1668, and Deuchar against Brown, 19th January 1762, that a promise to be cautioner could not be proved by witnesses, though, in the last case, the cautionary obligation was an accessary to a bargain of sale of a web of no greater value than L.47 Scots. Where then is the distinction ? It is this, in my apprehension,—that only the contracts which, among the Roman lawyers, are called consensual contracts, such as emptio venditio, locatio conductio, &c. can be proved by witnesses; but the contract of mutuum, a stipulation, or a fideijussion, or any other contract among the Romans, which required something more than naked consent, cannot with us be proved by witnesses; among which number are all the innominate contracts, do ut des, facio ut facias, &c.