Promise to relieve a cautioner not probable by witnesses, though within L. 100 Scots, where the promiser was dead.
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James Donaldson pursues John Harrower, as representing his father, for whom the pursuer became cautioner to the Lord Rollo for L. 100, for relief of the defunct's goods that were then a poinding; for which the defunct promised payment, and did pay the Lord Rollo, and produces a testificate of the Lord Rollo's thereof, and craves payment, and offers to prove the libel by witnesses, the libel not being above L. 100. It was alleged for the defender, That this being a cautionry, and a promise, it was not probable by witnesses, especially after so long a time, the promiser being dead, who might either qualify the promise, or instruct payment, there being nothing more ordinary, than to transact such affairs without any writ.
The Lords found the libel not probable by witnesses.
Fol. Dic. v. 2. p. 227. Stair, v. 1. p. 548.*** Gosford reports this case:
James Donaldson alleging, That he was cautioner for Alexander Harrower to the Lord Rollo, in anno 1644, for the sum of L.100, which he had paid, did pursue the said Alexander's son for relief. This action was not sustained, there being no bond adduced, to prove that he was cautioner; albeit it wasalleged, That being for the sum of L. 100, it was probable by witnesses; and a discharge, granted by the Lord Rollo, bearing payment, the defender's father having lived long after the alleged cautionry, and no pursuit intented against him during his lifetime, and the sum libelled being but L. 100; the Lords would not sustain a promise for relief to be proved but scripto vel juramento.
