Witnesses were admitted to prove the conditions of a bargain, though a bond might be evacuated thereby.
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James Simhaving charged Inglish of Murdistoun upon a bond of borrowed money, he suspends on this reason, that albeit the bond bear borrowed money, he offered him to prove by his oath, that the true cause was for the price of a mare which he bought for this sum; and offered to prove by the witnesses at the bargain, that it was upon express condition that he might take the trial of the mare for so many days, and restore her if she pleased him not, and that he sent her back within the time; and also, that the charger obliged himself to uphold her to be free of the scab, whereof there being some appearance upon the skin, he warranted it that it was but harvest rain. It was answered, That the manner of probation could not be divided, but behoved to be all referred to his oath, otherwise witnesses would take away writ.
The Lords found, That the cause of the bond being proved by the party's oath to be a bargain, the conditions of the bond might be proved by witnesses.
Fol. Dic. v. 2. p. 221. Stair, v. 2. p. 255.*** Gosford reports this case:
In a suspension raised at Murdistoun's instance, who was charged upon his bond to make payment of L. 13 Sterling to Sim, upon this reason, that albeit the bond did bear borrowed money, yet it was offered to be proved by the charger's oath, that the true cause of the granting thereof was for the price of a mare sold to the suspender as good and sufficient, and which the charger did oblige him to take back again, in case of any fault, within eight days thereafter, which is offered to be proved by the communers who were present at the bargain; it was answered, That the charge being founded upon a bond of borrowed money, which could not be taken away but by the charger's oath or writ as to the cause thereof, so, albeit the cause were confessed, the promise to accept back thereof was not probable but by the charger's oath. It was replied, That it being confessed that the bond was granted for another cause than for borrowed money, viz. for the price of a mare, the same being a merchant bargain, the condition thereof was probable by witness, and whether the same was sufficient or insufficient. The Lords finding that the bond was confessed to be for the price of a mare, it was then reduced to the nature of a merchant bargain, in which case, if there was any latent vice, the buyer might prove the same by witnesses; and therefore, ordained the communers who were present at the bargain to be examined; but as to any promise of taking back again, albeit there was no latent disease, they found it not probable by witnesses.
