Found in conformity with Auchinleck against Gordon, No 181. p. 12382. that a promise of one person to pay a sum for another is not probable by witnesses.
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William Cato having bought a web of plaiding from John Deuchar for L. 47 Scots, for which Thomas Brown became cautioner, whereupon Deuchar obtained decreet before the Bailies of Edinburgh against Brown, wherein the promise as cautioner was proved by witnesses; Brown suspends, and raises reduction on this reason, that the decreet was unjust, proceeding upon an unwarrantable probation, admitting witnesses to prove a promise, or the emission of words, where there is no bargain between the parties, which is only probable by writ, or oath of party. It was answered, That a promise for whatever cause, is valid and obligatory; and there is no difference of naked pactions, which were inefficacious by the Roman law, but are approved by the canon law, and common custom of nations; and as for the manner of probation thereof, the law of nature and nations admits witnesses to be sufficient; and though our custom hath very conveniently restricted probation by witnesses to matters of small moment, not exceeding L. 100, where writ may and uses to be adhibited in pænam negligentium, who if they do not write, must rest solely upon their party's oath, yet there is no restriction in matters of an hundred pounds value, or under; and therefore legacies of an hundred pounds are probable by oath; and if probation were further restricted, it would stop the course of traffic amongst the meaner people, who, by a trade in public market, neither use, nor can make writ in such cases. It was replied, That our law and custom hath not only limited the probation by witnesses upon the account of the importance of the matter, but also upon the manner of engaging, which if it be only by emission of words, these being so easily mistaken by the hearers, the same is not probable by witnesses, as in the matters of warrant or command, which is not probable by witnesses, so in verbal promises; in which rule there are very few exceptions, as first, legacies not exceeding an hundred pounds, made by defuncts on their death-bed, are probable by witnesses, ex favore ultimæ voluntatis;—next bargains in the way of traffic, wherein there is a mutual onerous cause in favorem commercii, are probable by witnesses; but a promise without any cause onerous, or commerce, whereby a party doth either gratuitously promise for himself, or becomes surety for another; such promises, though within an hundred pounds, are not probable by witnesses, which is very necessary for the security of the people, and doth not stop trade, wherein cautioners are not ordinary, and if parties trust to them, they must consider their honesty as well as their ability, and so must refer their promise to their oath.
The Lords having demurred upon this case, and having searched all the decisions that have been thereanent, they found such gratuitous promises, not being in the way of bargain or commerce, or even in that case, if the party bargained not for himself, but became cautioner for another, were not probable by witnesses, and therefore reduced the decreet.
Fol. Dic. v. 2. p. 227. Stair, v. 2. p. 50.*** Gosford reports this case:
Deuchar pursuing Brown upon an alleged promise of payment of L. 70, as cautioner for one who had bought goods from him; it was alleged for the defender, That a promise was not probable, but scripto vel juramento. It was replied, That by the law and practick of this kingdom, a promise to pay a sum within L.100 is probable prout de jure, for which several practicks were produced. It was, duplied, That by our law and practick, a debt within L. 100 was probable by Witnesses against a person who, by his promise or transaction, became debtor proprio nomine; but this action being to constitute a debt against an alleged cautioner for another person, there was neither law nor practick for it.
The Lords having considered this case as of general consequence, and to be a practick for the future, did sustain the defence; and found, that the allegeance of one to be cautioner ex promisso for another, who was not concerned, and had no benefit by the bargain or transaction betwixt either parties, was not probable but scripto vel juramento; and that it were of a dangerous consequence, where there was only nuda emissa verborum, if witnesses' depositions should be taken to constitute a debt against a person not concerned, seeing, by the civil law, de verborum obligationibus, where the stipulation is betwixt parties contracting, there are such solemnities required, and interrogation et congrua responsio necessary to make one debtor.
