The promise to pay an annuity, which it was alleged had been paid for two years, was not allowed to be proved by witnesses.
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Janet Lillie, relict of umquhile James Toures, brother to Laird Innerleith, pursuing him to be decerned to pay to her two bolls of wheat yearly, during her lifetime, which the Laird promised to pay to her yearly in presence of diverse famous witnesses, by whom she offered to prove the said promise, and condescended upon their names; and also that the cause of the promise was at the time when her said umquhile husband disponed to the Laird the lands of Pitlothie, whereto she consented; likeas, conform to that promise, the defender made her payment thereof yearly the years 1614 and 1615; which being controverted betwixt the parties, as a matter not probable by witnesses, being to pay a yearly duty, during the pursuer's lifetime; albeit the pursuer alleged, That it was probable by witnesses, being a matter of so small importance, and which she should prove by famous and unsuspected witnesses, et omni exceptione majores, which she alleged was so admissable; and the rather, the promise having taken effect by two years payment; the Lords found this promise only probable by writ or oath of party, and not by witnesses, being for a liferent duty, although of never so small a quantity; but declared, that it should be leisome to the pursuer, to have her witnesses present, when the party was to be examined upon his oath, and who might hear him depone, and put him before his deposition in remembrance of any circumstances concerning that matter, and that they might no otherwise contest with him upon his declaration, nor in any sort to impunge the same.
Act. —.Alt. Mowat.
Fol. Dic. v. 2. p. 227. Durie, p. 801.
