Alexander Thomson, Sadler in Edinburgh v. Carnegy of Kinfauns
Date: 28 December 1695 Case No. No 27.
Where witnesses only swore that they knew the defunct had bought things, from the pursuer, who was his ordinary furnisher, knowing nothing of the quantity or value, oath in supplement was refnsed.
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In the Concluded cause, Alexander Thomson, Sadler in Edinburgh, against Carnegy of Kinfauns, for payment of an accompt of horse-graith, furnished by the said pursuer to the defender's father, upon the passive titles; all that the witnesses adduced proved was, that they knew the defunct bought sadles and other furniture from the pursuer, and that he was his ordinary who furnished him in all such things, but could not be particular neither as to the quantities nor value; whereupon it was urged for the pursuer, That his oath might be taken in supplement of this defective probation; which the Lords refused, in regard the juramentum suppletorium is only permitted in law, where there is a semiplena probatio of the libel by one witness, or other pregnant circumstances, as where their apprentices or other witnesses condescend on the particular species of goods, mentioned in his compt-book, and that they saw them furnished, or carried them. But here there was scarce any thing proven at all, in which case, to take the pursuer's oath, were to prove his libel by his own oath; and though this may be very prejudicial to tradesmen, yet the contrary might lay a foundation to constitute great debts against the lieges, (who might have paid all at the off-taking of the goods,) if their oaths were in all cases taken in supplement. And though the Lords lately did it in Mrs Pourie's action against Thomas Robertson's Heirs, for an Apothecary's accompt, within these four years; yet, in that case, there were medicaments furnished to one in lecto. (which pleads some privilege,) and the witnesses were special as to some particulars, which did not occur in this case. It fell also to be debated here, if the date of the last article, being within three years of the pursuit, stopped the prescription of the whole, especially where there was a long interval of time between the last article and the preceding, which might be industriously abjected. Sir John Nisbet used to argue against that currency of accompts for stopping prescriptions. But the Lords commonly sustain it; however it was not here decided at this time.
Fol. Dic. v. 2. p. 11. Fountainhall, v. 1. p. 693.
