A promise was found probable by witnesses before the commissaries. Reduction repelled, because the defender had acquiesced in the mode of proof.
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Thomas Robertson having obtained a decreet against Thomas Sinclair for L. 93, and L. 5 of expenses of plea, he pursued William Wood before the Commissaries, as he who promised to see him paid thereof; in which process the Commissaries found the promise probable by witnesses. Whereupon William Wood pursues reduction, because the Commissaries had committed iniquity. It was answered, That this pursuer did not propone that allegeance, but, on the contrary, compeared at the diets for receiving the witnesses, without controverting this point; and though the Lords have now found, that promises are not probable by witnesses, yet that being the ancient custom of the Commissaries, it cannot be thought partis judicis, not being proponed by the party.
The Lords found the allegeance relevant, that Wood, compeared at the receiving of the witnesses, and never reclaimed, to infer his acquiescence.
