Payment and Consignation how relevant to be proved.
James Hume v. Robert Hyslop
Date: 8 December 1687 Case No. No 154.
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In a pursuit at the instance of James Hume contra Robert Hyslop, for the price of a horse,
Alleged for the defender; That he had proved payment by two witnesses, who deponed before the Commissary-Clerk.
Answered for the pursuer; Payment of money is not probable by witnesses; 2do, The deponents were not witnesses to the bargain, the alleged payment being a month posterior thereto; 3tio, They say only, that they saw the defender deliver twenty dollars to the pursuer, and not that the money was paid as the price of a horse.
Replied; Witnesses are competent to prove payment of bargains entered into without writ, especially the prices of horse; 2do, Twenty dollars was the price of the horse, and ought to be ascribed to that cause, unless the pursuer prove another cause; 3tio, The libel should bear, that the price is resting owing, which the pursuer must prove.
The Lords sustained the probation by the depositions of the witnesses, and assoilzied the defender.
