Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lyell v. -
Date: 31 January 1667
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Some Merchants in Dundee, having sold to Spruce, Englishman, 60 tons of wine, for which he paid L.30 Sterling, in part of payment, and took their receipt relative to the bargain. They draw bills of exchange on him for L.120 Sterling, but without relation to the bargain. Spruce, before payment of the rest of the price, absents himself, and assigns the bill of exchange as if it had been a bill of credit; and the drawers being convened for payment, alleged the cedent was debtor ab ante to the drawers for the price of wines; which was found relevant: so that the question was, how this debt should be proven against Spruce; for the merchants neglected to take writ of him, and the bills had no relation to the bargain.
Alleged,—That it being betwixt merchant and merchant, lege mercatoria it must be proven by witnesses. On the other hand contended, it being a bargain of importance of L.1000 Sterling, the same, of the law, cannot be proven but scripto vel juramento. If Spruce had been present, they would have referred the truth of the bargain to his oath; or if they had had only to do with Spruce, they would have gotten him holden as confessed; but the bills being assigned for a cause onerous, the assignee would not suffer the cedent to depone to his prejudice.
This case seemed to be very singular. The Lords were convinced there was a clear cheat in the thing, on Spruce's part, whereof Lyell was not free; and they knew not how to help the merchants and to preserve the law, whereby it is provided that nothing above L.100 Scots can be proven by witnesses. And yet seeing there was a double produced in process, attested by two notaries, of the receipt of L.30 relative to the bargain, the principal being in Spruce's own hands; therefore the Lords ordained him to be cited to produce the principal, with certification that if he did not, they would hold that double produced as relevant to infer the bargain above written: which wants not its own difficulties.
