Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Anent Probation by Witnesses
1672.
February.
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About this time one being pursued to pay the sum of L.40, conform to his bond; he offered to prove payment by witnesses, which he alleged to be lawful for him to do, the sum being within L.100. To this it was answered, That the payment of L.100 might be proven per testes, where the debt was not constituted by writ; but wherever any sum, though never so small, was due by writ, the same can never be taken away except by writ or oath of party. The Lords refused to admit witnesses against writ, though it was in re tam modica. And truly this is agreeable to former practiques. See Dury, 15th July 1624, Nisbetand Short, with the quotation on the margin, out of Antonius Faber. See Hadington, 15th November 1622, Macgill and Forrest; infra November 1673, [Syme against Inglis,] numero 429. See Dury 4th July 1632, Dalrympleagainst Closeburne.
The Lords also refused to admit the probation of a promise of L.20 only to witnesses, but ordained it though never so mean to be proven scripto vel juramento. Yet see the contrary in Dury, 25th February 1636, Laird of Ernock.
