Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
John Kinnaird v. Patrick M'Dougal
Date: 5 July 1694
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This was a charge on a bond for £8 sterling. The reason of suspension was, —I offer to prove, by your oath, though the bond bore borrowed money, yet the true cause of granting thereof was for the price of a horse; and that being confessed, then I offer to prove, by the witnesses present at the bargain, that I having questioned the horse as having the cold, you in express terms promised to uphold it. Answered,—That cannot be proven by witnesses, being a promise et nuda verborum emissio; and the debt being constituted by writ, the debtor's oath must be taken on the whole; and the manner of probation cannot be divided.
The Lords, first, found the allegeance not relevant, of his undertaking to uphold it, unless the suspender also joined this with it, that, how soon he discovered the distemper, he offered him back again, as the edictum cedilitium requires. 2do. Found, if he, upon oath, acknowledged that the cause of the bond was for the horse's price, then it reduced it to this point, as if there had been no bond at all, or as if the bond had borne that express cause in its narrative; in which or either of these cases the terms and conditions of the bargain might be proven by witnesses; and therefore allowed it to be so proven here.
